October 21, 2007
Does Larry Sabato Really Want A Constitutional Convention?
Why would a prominent professor supposedly in favor of having the second constitutional convention organize a symposium where the keynote speaker is dead set against a convention? And why pack the three subsequent panels with people against a convention? I kept asking myself these questions as I attended the recent symposium that Larry Sabato had the audacity to title “National Constitution Convention.”
When I first heard about the event I was troubled by how it was being marketed as, literally, a national constitutional convention – not a conference about a second convention, or the case for the first time use of the option in Article V of the Constitution to hold a convention of state delegates to consider making proposed amendments. Why sell the event as a national constitution convention? The answer became clear: to sell Larry Sabato’s latest book that sets forth a large number of constitutional amendments, most of which both the panelists and nearly everyone else examining them rejects.
This raised another troubling question: Why would someone who sincerely believes our nation needs another convention, rather than relying on Congress to propose amendments, purposefully set forth so many controversial amendments? History has shown that the many attempts to get an Article V convention failed because each of them was linked to advocacy for a specific amendment. When people opposed an amendment they automatically opposed an Article V convention. So here comes Larry Sabato who engineers a lot of public attention to over 20 amendments that many will oppose. True, it brings attention to amending the Constitution. But does he think that doing this will actually promote support for the nation’s first Article V convention? It certainly did not do that at his symposium. Consider these public positions given at the event:
Keynote speaker Geraldine Ferraro, former vice presidential nominee, could not have been more anti-convention. She said she was “not a fan of a second convention” and is “afraid of one.” While she articulated considerable fears about the damage a convention could do, she failed to even mention the safety net created by the Framers in Article V: the difficult ratification process where three-quarters of the states would have to approve every proposed amendment. Such an obvious bias cannot be overlooked when considering her perspective and comments – so typical of political establishment elites protecting the status quo.
The biggest event speaker was Supreme Court Justice Alito who said he was “skeptical” about the nation having the kind of talent for a second convention that was present at the first one. “I’m skeptical we’d be so fortunate if we tried it a second time,” he said. He seems to not understand that our current corrupt, dysfunctional political system has for some time not attracted the very best people. He also failed to mention the 2006 decision he supported with the rest of the Supreme Court to not consider a federal lawsuit, Walker vs. Members of Congress, that dealt specifically with the obligation of Congress to obey the Constitution and call an Article V Convention.
Several panelists took the position that Americans do not have sufficient civic literary or education to support having a convention, and that we could not do better than the original Framers, ignoring many of the subsequent amendments that have been extremely important because they improved upon the initial Constitution. Not one speaker recognized that there have been hundreds of state constitutional conventions, none of which wrecked state constitutions.
Lance Cargill, Oklahoma Speaker of the House, expressed concerns about a new convention causing political and economic instabilities. Could one expect anything more from the status quo political establishment? There was not one person on the symposium panels that could be considered a true activist advocating for an Article V convention as a critically need path to major political reforms.
One of the panelists noted that Sabato talks about “a new Constitution” and, of course, that rightfully frightens people. In fact, all an Article V convention can do is propose specific amendments to the current Constitution. It just feeds opposition to a convention to speak of a “new Constitution.” So why does Sabato do that?
Interestingly, one of Sabato's proposals for a balanced budget amendment received sufficient applications from the states to cause a convention call by Congress which it disregarded, which he should know and take a strong position on.
Let me give Sabato deserved thanks for pointing out a number of facts that theoretically should build public support for an Article V convention. He has correctly emphasized that the Founders gave us the Article V convention option because they “didn’t trust Congress.” And he has made it clear that Congress has refused to give Americans the convention option because they fear changing the political system by which they have gotten their jobs. “Congress is a burial ground for constitutional amendments,” he said. He has also made it abundantly clear that the Founders did not believe that the original Constitution was “perfect” and that, indeed, they “never intended it to be sacred and untouchable.” He has noted that the convention “was the Founders’ preferred method.” He likes quoting Thomas Jefferson who believed in periodic rebellions to safeguard American democracy. He should also quote Hamilton who stated a convention call was "peremptory" and that "Congress shall have no option" regarding a convention call.
In sum, on the one hand Sabato recognizes the need for constitutional amendments and that the route to getting important ones is through an Article V convention. On the other hand, however, nothing he is doing in his efforts promoting his latest book seem effective in actually building public support for the very difficult task of getting – after 220 years – the first Article V convention. How can we reconcile this dichotomy?
He expresses no sense of urgency despite recognizing the current political and government system is broken. “It will probably take a generation before anything happens, if it happens then,” he said – and a generation today means about 30 years. It would appear the professor is content simply to write a book about the issues, stir up a lot of negative feelings about a convention, but solve nothing regarding the problem.
He seems stuck in an academic mindset rather than proudly arguing for reform through a convention. He speaks promotes school mock constitutional conventions. In other words, he seems to have capitulated to a pretty negative perspective that despite having a big set of revolting conditions the country is not ready for soon having an Article V convention to reform and fix our broken system. Sabato knows that the Article V convention option was put into the Constitution because the Framers anticipated that the public might someday lose confidence in the federal government, and he surely knows that that day has arrived.
As a co-founder of Friends of the Article V Convention I welcome more explicit support for pressuring Congress to obey the Constitution and their oath of office by acknowledging that there have been over 500 applications from all 50 states for a convention. This more than satisfies the one and only requirement specified in Article V. And Sabato knows that Congress has never passed any law that in any way expands or re-interprets that single requirement that two-thirds of states ask for a convention, upon which Congress “shall” call a convention. It certainly would help the nation if Sabato would talk more about all of these circumstances than merely focus on a large set of contentious possible amendments which if a convention is never called will never come to pass.
Whenever SOCTUS has issued a very controversal and not always popular decision, they have always fallen back on the arguement that the Constitution is a “living document” and that as our society evolves, The Constitution evolves with it.
Sounds rather vague to me.
Why not breathe some REAL life into it by articulating that evolution of our most important document.
Surely a lot that which was true in 1776 is not true now…or at least is couched in vagaries that gives SCOTUS way too much leeway…stretching the meaning of The Constitution to suit their particular political opinion de jour.
The real reason politicians are against a convention is that real people may just attempt to take real power from them and restore it to “we the people”.
Nothing scares a politician more than loss of power.
It’s time. It’s actually PAST time.
Posted by: Jim T at October 21, 2007 07:59 PMWho would control such a convention? The state legislatures, which (if nobody has noticed) are controlled by the same two major political parties that control the federal government. If you have a problem with the behavior of out major parties, then the last think I think you’d want is for them to sit around and rewrite the Constitution.
Actually, I can think of virtually no “reforms” that two thirds of them would agree about anyway except perhaps strengthening their own joint-domination of the political landscape. I think it’s a very good thing that the Constitution is extremely difficult—and extremely slow—to change.
What if we’d have a Constitutional Convention in the days or weeks after 9-11? Would civil liberties have been strengthened or weakened by such a convention? Think about it.
Posted by: Loyal Opposition at October 21, 2007 08:43 PMHistory has shown that the many attempts to get an Article V convention failed because each of them was linked to advocacy for a specific amendment.
Isn’t this still a problem, and why none has been called? Yet you and the proponents of the convention keep claiming over 500 requests? Isn’t there a disconnect here?
LO:
The scary thing for me is as you state. It depends on the “issues” of the day way too much, and who’s in power at the time.
I’m not even sure who I would want chosen as representatives to the convention. Wouldn’t politics as it exists now control that? That to me is the scariest part of all this.
And no one needs to repeat to me the “built in protection” of the difficulty of ratification. That, too is political, and I understand it. No need to repeat it to me ad nauseum. I get it.
Posted by: womanmarine at October 21, 2007 08:51 PMWhether Sabato wants a convention or not is not the point. Do we, the people, want one enough to do what it takes to get one?
Posted by: Lee Jamison at October 21, 2007 08:55 PMLee, right on.
womanmarine, the current parties are precisely the check and control against a runaway convention that attempted to go too far. Ratification can be defeated by only 13 states, therefore, any amendments that would be ratified would have to achieve bi-partisan support of the majority of states.
Loyal Opp, I believe certain campaign finance reforms and removal of wealthy special interest influence directly upon legislation would be possible and receive bipartisan support. The truth is, a majority of Congress persons don’t like the current campaign finance system as it tugs too hard at their legislative careers, and most don’t like the pressure of wealthy special interest influence when it comes time to vote on a bill. If given the opportunity to reform these, I think most delegates from the states would potentially be capable of bi-partisan reform. Ratification is by the states, not the Congress Representatives themselves, and that is the key to success.
Jim T, I think you are right, the Congressional party leadership fears a convention for the very reasons you define. And since they won’t control the ratification, it is even scarier. But, getting Congress to submit to an Article V convention is a simple matter of enough voters voting out incumbents until a convention becomes amenable to the incumbent replacements.
Joel, overall, I think Sabato’s efforts here are better than no mention of the option at all. Secondly, I agree with Sabato and some of the panelists that America needs to invest in Civics education in a HUGE way before a convention can become a reality, and that may take a generation if we begin education reform in the next couple years.
Posted by: David R. Remer at October 21, 2007 09:30 PMThanks David, for telling me what I already know. And I’m not sure the current parties are, in fact, any check. Surely one would be dominant? Who decides what is too far?
The relevant axiom to a great deal of what I read here is “putting the cart before the horse”.
The whole point of the high thresholds set in the constitution was to make sure that we would be wasting our time on ideas for revision that had nowhere near the public support to guarantee their passage.
Of the Twenty-Seven amendments currently made to our constitution, only one failed to be ratified within four years of its proposal, and many saw passage within a year. The first amendment to take more than about two years was the 16th Amendment. The 27th, darling of many who advocate endless time for calls to gather is the exception that proves the rule. There’s about two centuries difference between the typical time it takes a proposed amendment to be ratified and what this one took. It’s an anomaly.
If you really think about it, the high threshold provides a sort of priming to the pump. There’s not that much difference between two-thirds and three-quarters. It’s a lot easier to get an Amendment ratified that has already got the overwhelming support when it’s proposed.
Which is what bugs me about this whole thing of this accumulation interpretation. Why deprive yourself of that generalized public approval for the convention? Why deprive so many of the states of their ability to express their current opinion about whether they want this or not?
The standard that one of the framers of this constitution can be expressed best in his own words.
It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged “on the application of the legislatures of two thirds of the States (which at present amount to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.” The words of this article are peremptory. The Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.
I’ve emphasized certain phrases which I think show that this particular framer believed this was going to be worked in a unified, consensus building approach. I underlined terms that imply unified responses, and therefore contemperaneous by definition. While this doesn’t carry the legal weight of a court case, it does carry the thinking of one of the major shapers of the constitution into the debate.
Somewhere along the line in this debate, we’ve forgotten that this process was supposed to be built on common cause, rather than special interest and impatient dissatisfaction with a current government we haven’t even been trying to keep control of the past few years.
I am very much of the feeling that this country needs to heal, needs to settle down, and remember that we are all in this together.
Like the green creature from that movie once said, fear is the path to the darkside. We have to resist the impulse to run roughshod over others to get what we want.
I think Sabato’s impulse to keep this calm and academic is correct. This does not need to be a subject that we approach rashly.
Posted by: Stephen Daugherty at October 21, 2007 10:15 PMThe truth is, a majority of Congress persons don’t like the current campaign finance system as it tugs too hard at their legislative careers, and most don’t like the pressure of wealthy special interest influence when it comes time to vote on a bill.
David, you’re somebody who has constantly sounded a drumbeat about how most of our current set of incumbents only have power in the first place (legislative careers) because they’re the bought-and-paid for stooges of moneyed interests, and that they’re so corrupt that they need to be voted out of office en masse.
But now you say that they don’t even like this arrangement whereby they keep and maintain power? If that’s how they feel, why don’t they change it NOW? Obviously because you’re wrong—they LIKE feeding at the trough. Why would the major parties take steps in a Constitutional Convention which they could much more easily take right now. And which further would threaten the ability of their members to be reelected?
Posted by: Loyal Opposition at October 21, 2007 10:38 PMJoel, Good question. Sabato introduced some amendments that may scare people.
Still, as David R. Remer noted, it’s still better than nothing.
But should people fear an Article V Convention?
If so, what does that say?
Does it mean we already waited too long?
Are we going to permanently waive our only means to amend the Constitution?
Congress has an obvious conflict of interest. Do you want to trust them to only determine what needs amended?
All 50 states have already subitted 523 amendment applications.
What does that mean?
Were the states aware all along that Congress was going to ignore it, or try to conveniently re-interpret Article V (something that is illegal).
However, it’s not a question of if it is good or bad. It is a matter of upholding the Constitution, and Congress is violating Article V.
Who would control such a convention? The state legislatures, which (if nobody has noticed) are controlled by the same two major political parties that control the federal government. If you have a problem with the behavior of out major parties, then the last think I think you’d want is for them to sit around and rewrite the Constitution.Delegates. Not Congress. Congress does not control the Convention. The states do.
Stephen Daugherty wrote: The standard that one of the framers of this constitution can be expressed best in his own words.“unite” does not equate “same-subject amendments” or “whenever contemporaneously”. There is nothing in Federalist #85 that supports a re-interpretation of “whenever” to “whenever contemporaneously”, or from “amendments” to “same-subject amendments”. Congress can not legally veto the literal meaning of Article V of the Constitution. Where is any Supreme Court ruling that states Congress can ignore Article V? The Supreme Court will continue to do nothing until another law suit is filed that only deals with one thing: Congress must call an Article V Convention. The conditions have been met. Even going by the same-subject requirement, the conditions have been met 4 times. But there is no “same-subject” requirement, and there is no “whereever contemporaneous” requirement in Ariticle V.
Besides, any re-interpretation is illegal.
To conveniently re-interpret Article V from “whenever” to “whenever contemporaneously” and/or “amendments” to “same-subject amendments” violate all of the following (below) …
The Supreme Court has already (many times) dealt with cases in interpreting the Constitution and its provisions:
- [#01] U.S. v. Classic, 313 U.S. 299 (1941): “Where there are several possible meanings of the words of the constitution, that meaning which will defeat rather than effectuate the constitutional purpose cannot rightly be preferred.”
- [#02] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “Where the text of the constitution is “clear and distinct”, no restriction on its plain and obvious import should be admitted unless the inference is irresistible.”
- [#03] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “Words of [the] Constitution are to be taken in natural and obvious sense, and not in sense unreasonably restricted or enlarged.”
- [#04] U.S. v Sprague, 282 U.S. 716 (1931): “Where intention of words and phrases used in Constitution is clear, there is no room for construction and no excuse for interpolation.”
- [#05] Ogden v. Saunders, 25 U.S. 213 (1827): “Where provision in United States Constitution is unambiguous and its meaning is entirely free from doubt, the intention of the framers of the constitution cannot be inquired into, and the supreme court is bound to give the provision full operation, whatever might be the views entertained of its expediency.”
- [#06] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “The government of the United States can claim no powers which are not granted to it by the Constitution.”
- [#07] Jarrolt v. Moberly, 103 U.S. 580 (1880): “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.”
- [#08] Ullmann v. U.S., 350 U.S. 422 (1956): “Nothing new can be put into the constitution except through the amendatory process, and nothing old can be taken out without the same process.” .
Also, the Supreme Court has already ruled 4 times mandating a Convention call by Congress:
- Dodge v. Woolsey, 59 U.S. 331 (1855)
- Hawke v. Smith, 253 U.S. 221 (1920)
- Dillon v. Gloss 256 U.S. 368 (1921)
- United States v. Sprague, 282 U.S. 716 (1931)
And Coleman v Miller, 307 U.S. 433 (year 1939) did not rule that Congress can ignore Article V. While the decision did state the amendatory process was the “exclusive” province of Congress, no where in the ruling was there any mention of the amendatory convention nor was the language of Article V even quoted. It did not nullify Article V. Congress can not add new words or remove old words from the Constitution except through the amendatory process. There was no amendment put before the states to change the literal meaning of Article V.
What we should be fearful of is our government that is violating Article V.
Congress is violating Article V.
Congress can not add new words or remove old words from the Constitution without amending it first.
Congress can not re-interpret words that are “plain and obvious”.
Congress can not “defeat rather than effectuate the constitutional purpose cannot rightly be preferred”.
There is no need to fear an Article V Convention, because:
- (01) It requires 3/4 of states to ratify any amendment. Delegates from the states are who is voting on the amendments.
- (02) The states don’t want to give more power to a bloated, wasteful, corrupt, Do-Nothing Congress, Executive Branch, or Supreme Court. Especially with Congress’ approval ratings as low as 11%.
- (03) The states have already given time and thought to 523 amemdment requests (many of those are same subject, since the so-called same-subject threshold has already been met too 4 times).
- (04) The states do not want to give more power to other states. If anything, the state legislatures will be reducing the federal government’s power since it has abused it (perhaps introduce term-limits, balanced budget, one-purpose-per-bill, prohibit Gerrymandering, etc.).
- (05) The main stream media will be watching.
- (06) The bloggers will be watching, making it difficult for the Main Stream Media to spin it.
- (07) The journalists will be watching.
- (08) The people will be watching.
- (09) Congress doesn’t control the convention.
- (10) It will raise awareness. Something that can’t hurt. Even if no amendments are passed, it will help us preserve our right to an Article V Convention.
Will we forever forfeit our right to an Article V Covnention?
The framers suspected that the federal government may become so corrupt and bloated that the states would want to intervene to make amendments.
All 50 states have already submitted 523 amendments, and Congress is ignoring it.
That’s what you should be afraid of.
If Congress can ignore one part of the Constitution, it’s just a matter of time before others will follow.
But, if too many voters fail to exercise their rights, then they will have the government that they deserve. Do they like it the way it is?
Dan-
If the original founders interpretated Article V as cumulative, were it recognized, we’d have seen no more than the required votes for that two thirds number, then a big court case or public controversy on the matter.
That there is no historical record of all this despite over two hundred years of history and five hundred calls (certainly a whole lot of opportunities for this controversy to arise), is evidence that your interpretation is more likely the flawed one.
As for your cases?
#1 The purpose of the high threshold was to make Amending the Constitution somewhat difficult. If you don’t like that, get an amendment proposed that makes it easier, if you can.
#2, #3 Clear and distinct, plain and obvious? Cart before the horse. You haven’t offered one bit of external evidence to support a cumulative interpretation of the law. Before you can lecture us on our inability to recognize what you do, you got to first convince us of that.
#4: The proportion of members of Congress in both houses required to propose amendments and the proportion of the states required to do the same in a convention are identical. What is there in the text that explicitly denies similar procedures for each method? Much similarity exists between the two, so why can’t we assume a similar sort of political unity required of each group? Nearly everything else is the same.
#5, #6, #7, and #8 all state some rather obvious points, so let me save space and restate my original point: your interpretation stretches the meaning of the original text beyond the obvious. Almost nobody has assumed what you have about its meaning. It may be obvious to you, but many preconceptions are obvious to the people who want them to be self-evident. When do we get past your perception to what the evidence speaks of.
As for the cases? the subject of Dodge Vs. Woolsey seems to regard a state being sued over a tax increase due to a change in the statue. It was in fact brought by a private citizen against the state. Hawke Vs. Smith, far from affirming some sort of convention call, basically says that a ratification by the state legislature of the 18th Amendment (prohibition) could not be overturned by public referendum.
In Dylan Vs. Gloss, the court ruled that the seven year time limit put on the amendment’s ratification was perfectly constitutional, so long as it didn’t interfere with Article V.
The last Case does deal with conventions, but not in the manner you think.
The court did not agree, however, ruling that the Constitution explicitly authorized Congress to determine the method used in ratifying amendments.
In short, the court said that Congress had the right to ratify an amendment by either convention or state legislatures, and could choose as it pleased.
None of these cases directly addresses convention calls of the type we’re speaking of. Only three of the four address Article V issues. None address the subject of our discussion.
What we would be looking for is an act of the courts compelling the calling of a constitutional convention on the basis of the fact that the requisite proportion of the states had made their calls. Anything less falls short.
Posted by: Stephen Daugherty at October 22, 2007 02:06 AM
Rather than debating the pros and cons of a Constitional Convention, I would much prefer to see and debate the merits of actual Constitutional amendments. For instance, should we have a balanced budget amendment? Should it be written in such a manner that the government can not borrow and spend under any circumstances? What affect would a balanced budget amendment have on taxes and spending priorities?
Posted by: jlw at October 22, 2007 10:32 AM
Stephen Daugherty wrote: d.a.n- If the original founders interpretated Article V as cumulative, were it recognized, we’d have seen no more than the required votes for that two thirds number, then a big court case or public controversy on the matter.False. There have been two court cases.
They were dismissed on technicalities having nothing to do with Article V. The meaning if “whenever” is very clear. Previous Supreme Court cases support that fact that Congress is legally required to call a convention.
Stephen Daugherty wrote: That there is no historical record of all this despite over two hundred years of history and five hundred calls (certainly a whole lot of opportunities for this controversy to arise), is evidence that your interpretation is more likely the flawed one.False. It’s not my interpretation. It is the “plain and obvious” words of Article V that indicate that Congress is violating Article V. There is no court ruling that permits Congress to ignore Article V. Just because Do-Nothing Congress is violating Article V and getting away with it thus far does not make it any less illegal.
Stephen Daugherty wrote: As for your cases? #1 The purpose of the high threshold was to make Amending the Constitution somewhat difficult. If you don’t like that, get an amendment proposed that makes it easier, if you can.Don’t really need more amendments. There are already 523. What is needed is another law suit that can’t be dismissed on technicalities. The Supreme Court stated in [#01] U.S. v. Classic, 313 U.S. 299 (1941): “Where there are several possible meanings of the words of the constitution, that meaning which will defeat rather than effectuate the constitutional purpose cannot rightly be preferred.”
Stephen Daugherty wrote:
#2, #3 Clear and distinct, plain and obvious? Cart before the horse. You haven’t offered one bit of external evidence to support a cumulative interpretation of the law. Before you can lecture us on our inability to recognize what you do, you got to first convince us of that.
False. Lecture? Convince? Again, there’s no need to turn this into a personal issue. That simply demonstrates the weakness of your arguments.
It’s not about me. It’s the “plain and obvious” text; the literal meaning of the Constitution, backed up by many cases.
I listed over a dozen court cases that support the “plain and obvious” interpretations of the Constitution. The words “plain and obvious” come from [#02] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “Where the text of the constitution is “clear and distinct”, no restriction on its plain and obvious import should be admitted unless the inference is irresistible.”
The Supreme Court stated in [#02] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “Where the text of the constitution is “clear and distinct”, no restriction on its plain and obvious import should be admitted unless the inference is irresistible.”
The Supreme Court stated in [#03] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “Words of [the] Constitution are to be taken in natural and obvious sense, and not in sense unreasonably restricted or enlarged.”
Stephen Daugherty wrote: #4: The proportion of members of Congress in both houses required to propose amendments and the proportion of the states required to do the same in a convention are identical. What is there in the text that explicitly denies similar procedures for each method? Much similarity exists between the two, so why can’t we assume a similar sort of political unity required of each group? Nearly everything else is the same.Non sequitur. All that is required for Congress to call a convention is two-thirds of the states to submit amendment applications. The states have sumbitted 523 amendments, and 4 times there were also a sufficient number based on same-subject amendments.
The Supreme Court stated in [#04] U.S. v Sprague, 282 U.S. 716 (1931): “Where intention of words and phrases used in Constitution is clear, there is no room for construction and no excuse for interpolation.”
Stephen Daugherty wrote: #5, #6, #7, and #8 all state some rather obvious points, so let me save space and restate my original point: your interpretation stretches the meaning of the original text beyond the obvious. Almost nobody has assumed what you have about its meaning. It may be obvious to you, but many preconceptions are obvious to the people who want them to be self-evident. When do we get past your perception to what the evidence speaks of.It’s not my perception. There’s no need to turn every debate into a personal issue.
The Supreme Court stated in:
- [#05] Ogden v. Saunders, 25 U.S. 213 (1827): “Where provision in United States Constitution is unambiguous and its meaning is entirely free from doubt, the intention of the framers of the constitution cannot be inquired into, and the supreme court is bound to give the provision full operation, whatever might be the views entertained of its expediency.”
- [#06] Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “The government of the United States can claim no powers which are not granted to it by the Constitution.”
- [#07] Jarrolt v. Moberly, 103 U.S. 580 (1880): “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.”
- [#08] Ullmann v. U.S., 350 U.S. 422 (1956): “Nothing new can be put into the constitution except through the amendatory process, and nothing old can be taken out without the same process.” .
These all support the “plain and obvious” meaning of the words of the Constitution. Until Article V is amended, it should be obeyed. Congress is violating Article V.
There is no stretching by insisting on the literal and obvious meaning of the words of Article V.
The only stretching is the convenient and suspicious attempts to re-interpret (reconstruct) “whenever” to “whenever contemporaneously” and/or “amendments” to “same-subject amendments”.
The statements in the referenced cases (above in [#01], …,[#08]) support the “plain and obvious” meaning of provisions in the Constitution. It addresses ambiguities and double-meanings. Also, it states that reconstructions (re-interpretations) are not allowed. The language of Article V is very clear, and there are ample previous Supreme Court cases to support the interpretations of the Constitution. Congress can not ignore the “plain and obvious” language. The Congress can not add new or remove old parts of the Constitution without a amendment. The states were not presented with any amendment to change Article V.
Stephen Daugherty wrote: As for the cases? the subject of Dodge Vs. Woolsey seems to regard a state being sued over a tax increase due to a change in the statue. It was in fact brought by a private citizen against the state. Hawke Vs. Smith, far from affirming some sort of convention call, basically says that a ratification by the state legislature of the 18th Amendment (prohibition) could not be overturned by public referendum.Non sequitur. Ratification is not the issue. The issue is Congress is violating Article V by not calling an Article V Convention.
The Supreme Court has already ruled 4 times mandating a Convention call by Congress:
- Dodge v. Woolsey, 59 U.S. 331 (1855)
- Hawke v. Smith, 253 U.S. 221 (1920)
- Dillon v. Gloss 256 U.S. 368 (1921)
- United States v. Sprague, 282 U.S. 716 (1931)
So, it is very clear in Dodge v. Woolsey, 59 U.S. 331 (1855). “Congress must call a convention”.
Again, it is very clear in Hawke v. Smith, 253 U.S. 221 (1920) that “The language of the article [V] is plain and admits no doubt in its interpretation.”
Again, the meaning of Article V is reaffirmed.
Again, the Supreme Court rules there is “no ambibuity”.
Stephen Daugherty wrote: In Dylan Vs. Gloss, the court ruled that the seven year time limit put on the amendment’s ratification was perfectly constitutional, so long as it didn’t interfere with Article V.Non sequitur. Ratification time limits are not the issue. The issue is Congress is violating Article V by not calling an Article V Convention. The courts have already ruled that Congress can, if specified, set time limits on ratificaiton. Amendment 27 was not ratified until 220 years later.
Stephen Daugherty wrote: The last Case does deal with conventions, but not in the manner you think.The last case, United States v. Sprague, 282 U.S. 716 (1931), the Supreme Court stated: “… that article 5 is clear in statement and in meaning, contains no ambiguity,…”
Stephen Daugherty wrote: The court did not agree, however, ruling that the Constitution explicitly authorized Congress to determine the method used in ratifying amendments. In short, the court said that Congress had the right to ratify an amendment by either convention or state legislatures, and could choose as it pleased.Again, ratification is not the issue.
Stephen Daugherty wrote: What we would be looking for is an act of the courts compelling the calling of a constitutional convention on the basis of the fact that the requisite proportion of the states had made their calls. Anything less falls short.All 50 states have submitted 523 amendment applications. Congress is violating Article V. No part of the Constitution can be vetoed or ignored or conveniently re-interpreted. That’s the law. It is that simple.
Stephen Daugherty wrote: None of these cases directly addresses convention calls of the type we’re speaking of. Only three of the four address Article V issues. None address the subject of our discussion.False. All four cases (above) directly addressed Article V. The quotes above prove it.
Stephen, What part (in all of these court cases) of “no ambiguity”, “plain and obvious”, and “any amendment”, “Congress must call a convention”, and “Congress shall call a convention” do you not understand?
Dan-
Two Court Cases? Yeah, your founders I would guess. But those are fairly recent, and you miss my point if you’re just counting those.
The states are the ones to complain about this, and they never have, not even in times close to that. If you examine the notes of the Consitutional convention, cumulative interpretations never show up, not as an issue. There’s nothing clear, distinct, obvious, or plain about a cumulative interpretation. It greatly complicates the meaning of a clause that would otherwise plainly create parity between amendments proposed by the states and those proposed by Congress, giving them the same weight in their proposal, the same backing of political consensus.
As for your case? Martin v. Hunter’s Lessee was about the supremacy of Supreme Court interpretation over state. US v. Sprague was about Congress’s ability to specify the means under Article V which were used to ratify the amendment. They were trying to argue that the 18th Amendment (Prohibition) was invalid on the grounds that the amendment didn’t include both means. The Supremes said Congress could choose one or the other, that in fact this authority was explicit. Jarrolt v. Moberly seems to revolve, ironically enough, around a legal question concerning a state constitution, which barred the creation of debts without the assent of two-thirds of the qualified voters. It doesn’t look like anybody used an cumulative interpretation.
Ullman deals with Fifth Amendment rights, as to whether somebody granted immunity could take the fifth if they fear incrimination. The notion presented was that the Fifth should not be whittled down by small traces, but rather fully and robustly upheld. Still, Ulmann lost, the sense being he had been granted immunity, and therefore had nothing to fear.
My impression of this FOAVC movement is that it’s trying to whittle down the truly difficult threshold that Article V presents, for various reason.
The other case you present… Well, I read them myself, and didn’t find a trace of this convention call you talk about. They don’t even address that issue. You quote the parts that reflect the obligatory nature of the convention, but nothing, nothing in the real meat of the case actually concerns a convention call. Dodge v. Woolsey is a tax case, part of which deals with some complex issue of federal jurisdiction. One thing for sure, there’s nothing there about an actual convention call being made at the time, nor in any of the other cases.
In essence, your argument remains circular. You keep on coming back to Article V’s plain text without actually giving any case law or precedent which makes your view logically necessary, much less shows it demonstrated in practice.
False. All four cases (above) directly addressed Article V. The quotes above prove it.
Some address Article V, but none addresses an Article V Convention, or any circumstances regarding it. The questions that do deal with article five deal with the submission of individual amendments.
None, none at all, mandate in their judgments that a convention be called. I don’t think you understand how the legal system works. It’s not merely a matter of them restating a part of the constitution, and you taking the meaning you want from that, it’s a matter of what the case was intended to deal with, and what the judgment was meant to remedy or deny. There is nothing here to suggest that Article V Conventions were a main subject of any of the cases, absolutely nothing there to indicate that states sought relief on the basis of all the necessary calls being made, and not one remedy ordered by the court moving such a convention forward.
What I do not understand here is how you can claim obvious support or obvious interpretations where no evidence exists to support them. Whoever’s feeding you this stuff is cherrypicking and doing a piss-poor job of it in my opinion. Even I, not a lawyer by any means, can knock these down with a little research.
This is a great deal of interpretation without a lot of clear logic or good evidence to support it. You’re failing to get your ducks in a line on the important questions, the important issues, and then are getting rather upset that people like me aren’t falling at your feet and begging pardon for our error.
Too much of the approach you take to this and other political question depends on what you want, rather than what you can prove is right.
To the others-
What’s your view of these questions?
Stephen Daugherty wrote: d.a.n- Two Court Cases? Yeah, your founders I would guess. But those are fairly recent, and you miss my point if you’re just counting those.You stated:
Stephen Daugherty wrote: “… case or public controversy on the matter …”There were two cases thus far. Both were dismissed on technicalities. Things were learned from it. I’m aware that no other suits exist yet. There will be.
Stephen Daugherty wrote: The states are the ones to complain about this, and they never have, not even in times close to that.False. Any American can complain about it. Any American can pursue it.
Stephen Daugherty wrote: If you examine the notes of the Consitutional convention, cumulative interpretations never show up, not as an issue.Immaterial. The burden of proof is not to defend the literal, “plain and obvious” text of Article V.
The burden of proof is on anyone who chooses to re-interpret Article V from “whenever” to “whenever contemporaneously”, and/or “amendments” to “same-subject amendments”.
As for the mention of Convention and Article V …
Stephen Daugherty wrote: There’s nothing clear, distinct, obvious, or plain about a cumulative interpretation.False. There is the literal, plain, and obvious text of Article V. No re-interpretation is required.
The re-interpretatios are by those that suspiciously choose to re-interpret “whenever” to “whenever contemporaneously” and/or “amendments” to “same-subject amendements”.
Stephen Daugherty wrote: It greatly complicates the meaning of a clause that would otherwise plainly create parity between amendments proposed by the states and those proposed by Congress, giving them the same weight in their proposal, the same backing of political consensus.False. The literal meaning is clear and many previous court rulings back it up. There is no ruling that states Article V can be ignored. Congress is violating Article V.
Stephen Daugherty wrote: As for your case? Martin v. Hunter’s Lessee was about the supremacy of Supreme Court interpretation over state. US v. Sprague was about Congress’s ability to specify the means under Article V which were used to ratify the amendment.Immaterial. What is important about Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) is the Court stated: “Where the text of the constitution is clear and distinct, no restriction on its plain and obvious import should be admitted unless the inference is irresistible.”
Stephen Daugherty wrote: Ullman deals with Fifth Amendment rights, as to whether somebody granted immunity could take the fifth if they fear incrimination…Immaterial. What is important about Ullmann v. U.S., 350 U.S. 422 (1956) is the court stated: “Nothing new can be put into the constitution except through the amendatory process, and nothing old can be taken out without the same process.”
Stephen Daugherty wrote: My impression of this FOAVC movement is that it’s trying to whittle down the truly difficult threshold that Article V presents, for various reason.False. It simply supports Article V and believes the Constitution should be upheld.
Stephen Daugherty wrote: The other case you present… Well, I read them myself, and didn’t find a trace of this convention call you talk about.Read it again. Some deal explicitly with Article V and some deal with interpetations of the Constition. Several contain the words “Article V” and/or “Convention”.
Stephen Daugherty wrote: They don’t even address that issue.False.
Stephen Daugherty wrote: You quote the parts that reflect the obligatory nature of the convention, but nothing, nothing in the real meat of the case actually concerns a convention call. Dodge v. Woolsey is a tax case, part of which deals with some complex issue of federal jurisdiction. One thing for sure, there’s nothing there about an actual convention call being made at the time, nor in any of the other cases.Wrong again.
Notice the words “convention clause of Article V” and “Congress must call a convention” above stated by the court?
Stephen Daugherty wrote: In essence, your argument remains circular.False. I offer evidence, court cases, and the text of Article V; not mere opinion.
Stephen Daugherty wrote: You keep on coming back to Article V’s plain text without actually giving any case law or precedent which makes your view logically necessary, much less shows it demonstrated in practice.That is all that is needed. The literal, “plain and obvious” text requires no re-interpretation. It’s not hard to shoot holes in all of the re-interpretation theories. Especially when there is no ruling by the Supreme Court that states Congress can ignore Article V.
Stephen Daugherty wrote: Some address Article V, but none addresses an Article V Convention, or any circumstances regarding it. The questions that do deal with article five deal with the submission of individual amendments.False. Several cases above use the word “convention”. Notice the words “convention clause of Article V” and “Congress must call a convention” above stated by the court?
Stephen Daugherty wrote: None, none at all, mandate in their judgments that a convention be called.False. In Dodge v. Woolsey, 59 U.S. 331 (1855), the court stated: “The Court has specifically addressed the obligatory nature of the convention clause in Article V in case. The interpretation was always the same: Congress must call a convention. And in United States v. Sprague, 282 U.S. 716 (1931), the final Supreme Court stated: “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the ap-plication of the legislatures of two-thirds of the States, must call a convention to propose them.” Can you not read?
Stephen Daugherty wrote: I don’t think you understand how the legal system works.Think so? I used to work at a law firm.
And FOAVC has attorneys; one was a Chief Justice of the state of Michigan. Do you think you know more than they do?
Stephen Daugherty wrote: It’s not merely a matter of them restating a part of the constitution, and you taking the meaning you want from that, it’s a matter of what the case was intended to deal with, and what the judgment was meant to remedy or deny.That literal, “plain and obvious” text is all that is required, and the source of your obvious frustration and inability to make any credible argument to refute it.
Stephen Daugherty wrote: There is nothing here to suggest that Article V Conventions were a main subject of any of the cases, absolutely nothing there to indicate that states sought relief on the basis of all the necessary calls being made, and not one remedy ordered by the court moving such a convention forward.False. “Article V” and the “convention” was referred to many times in many cases. Your many statements refuting the obvious facts and occurences of these words have no credibility.
Stephen Daugherty wrote: What I do not understand here is …Obviously.
Stephen Daugherty wrote: What I do not understand here is how you can claim obvious support or obvious interpretations where no evidence exists to support them.
Stephen Daugherty wrote: Whoever’s feeding you this stuff is cherrypicking and doing a piss-poor job of it in my opinion.Nonsense. It is all public record. Feel free to try and disprove any of it, rather than pushing mere opinion.
Stephen Daugherty wrote: Even I, not a lawyer by any means,That’s obvious.
Stephen Daugherty wrote: Even I, not a lawyer by any means, can knock these down with a little research.You have not knocked down anything.
In fact, you are serving to strengthen all of the arguments for Article V of the U.S. Constitution.
Thank you.
All of your arguements were easily refuted with court cases, but mostly by the literal, “plain and obvius” text of Article V. Also, there is no court ruling that allows Article V to be violated.
Stephen Daugherty wrote: This is a great deal of interpretation without a lot of clear logic or good evidence to support it.False. There is no need for a great deal of interpretation.
The literal, clear, “plain and obvious” text of Article V does not require re-interpretation.
It is not complicated.
The difficulty in re-interpretation lies with those that try to re-interpret the literal meaning to something else (e.g. from “whenever” to “contemporaneously”, and from “amendments” to “same-subject amendments”).
Stephen Daugherty wrote: You’re failing to get your ducks in a line on the important questions, the important issues, and then are getting rather upset that people like me aren’t falling at your feet and begging pardon for our error.Nonsense. You are simply giving me a venue to demonstrate to everyone how lame your arguments are, and educate others about Article V. Thank you.
Stephen Daugherty wrote: Too much of the approach you take to this and other political question depends on what you want, rather than what you can prove is right.Not true. Again, you want to make a personal issue of this, instead of debating the facts. Resoring to personal attacks simply demontrates that your arguments have no credibility.
I’ve presented ample evidence, dozens of court cases on Article V, Court interpretations of the Constitution, the literal, “plain and obvious” text of Article V, and the fact that no ruling exists that allows Congress to ignore Article V, nor any part of the Constitution without first amending it. No such amendment was submitted to the states for ratification.
Stephen Daugherty wrote: To the others- What’s your view of these questions?Yes, please join in. For those that would like to research this issue, see: FOAVC.ORG Posted by: d.a.n at October 22, 2007 02:01 PM
Rather than debating the pros and cons of a Constitional Convention, I would much prefer to see and debate the merits of actual Constitutional amendments.Yes, there are many issues. Each one could consume a thread by itself. Sabato’s 23:
- (01) Expand the Senate to 136 members to be more representative: Grant the 10 most populous states 2 additional Senators, the 15 next most populous states 1 additional Senator, and the District of Columbia 1 Senator.
- (02) Appoint all former Presidents and Vice Presidents to the new office of “National Senator.”
- (03) Mandate non-partisan redistricting for House elections to enhance electoral competition.
- (04) Lengthen House terms to 3 years (from 2) and set Senate terms to coincide with all Presidential elections, so the entire House and Senate would be elected at the same time as the President.
- (05) Expand the size of the House to approximately 1,000 members (from current 435), so House members can be closer to their constituents, and to level the playing field in House elections.
- (06) Establish term limits in the House and Senate to restore the Founders’ principle of frequent rotation in office.
- (07) Add a Balanced Budget Amendment to encourage fiscal fairness to future generations.
- (08) Create a Continuity of Government procedure to provide for replacement Senators and Congresspeople in the event of extensive deaths or incapacitation.
- (09) Establish a new 6-year, 1-time Presidential term with the option for the President to seek 2 additional years in an up/down referendum of the American people.
- (10) Limit some Presidential war-making powers and expand Congress’s oversight of war-making.
- (11) Give the President a line-item veto.
- (12) Allow men and women not born in the U.S. to run for President or Vice President after having been a citizen for 20 years.
- (13) Eliminate lifetime tenure for federal judges in favor of non-renewable 15-year terms for all federal judges.
- (14) Grant Congress the power to set a mandatory retirement age for all federal judges.
- (15) Expand the size of the Supreme Court from 9 to 12 to be more representative.
- (16) Give federal judges guaranteed cost of living increases so pay is never an issue.
- (17) Write a new constitutional article specifically for the politics of the American system.
- (18) Adopt a regional, staggered lottery system, over 4 months, for Presidential party nominations to avoid the destructive front-loading of primaries.
- (19) Mend the Electoral College by granting more populated states additional electors, to preserve the benefits of the College while minimizing the chances a President will win without a majority of the popular vote.
- (20) Reform campaign financing by preventing wealthy candidates from financing their campaigns, and by mandating partial public financing for House and Senate campaigns.
- (21) Adopt an automatic registration system for all qualified American citizens to guarantee their right to vote is not abridged by bureaucratic requirements.
- (22) Create a Constitutional requirement that all able-bodied young Americans devote at least 2 years of their lives in service to the country.
- (23) Convene a new Constitutional Convention using the state-based mechanism left to us by the Framers in the current Constitution.
Stephen,
I’ll be blunt since I can’t get you to respond to my posts on this matter otherwise. There is far more legal precedence for the accumulation standard than not. The Child Labor Ammenment was specifically tested on the grounds of consent not being contemporaneous, and the SC ruled that unless Congress authorized a time limit, then the ammendment can be promulgated.
The option whether to do so or not is up to Congress based on the standard of whether or not it is too stale to make any legal difference. There are six ammendments that are currently before the States for ratification all from the 19th or early 20th century. All but one would probably not be promulgated since they would be stale.
However, the SC has also decided that the calling of Conventions is a matter for the political arm of the government, and that they do not have the standing to rule on the matter. They have expressly left the operating details and the timing of a convention to Congress. Your argument for contemporaneous call jibs with what Congress’ understanding seems to be. I doubt that will change; however, it could. There is nothing binding or legal that states that Congress has to use either standard.
Posted by: Rob at October 22, 2007 04:53 PMDan-
Proponents of a cumulative interpretation point to original intent and the plain and obvious meaning of the text. Logically speaking, proving original intent requires that one weigh in with evidence supporting the notion that this was the original position. In short, somebody has to talk about it in a matter germane to the interpretation they’re supposed to have. I went through the minutes of the constitutional convention, and didn’t find one mention of it. My objections on the subject of Alexander Hamilton’s commentary are well known. He spoke of unions, of uniting, of concurring, all activities that do not happen piecemeal, or by unrelated accumulation.
As far as case law would go, there is a valid legal question of standing, as to who they can represent. In previous arguments, the point about these cases was also made regarding what kind of cases would be of interest: those close to the beginning of American history on the constitution, so as to test the theory that this was the original method considered.
Repetition of principles of strict construction and restatings of the words of Article V in case law are irrelevant to such a test of the theory unless it is clear that a cumulative interpretation is clear and obvious to the people in question, or the states themselves file suit to get that convention, and the court grants them that right in the face of congressional resistance.
Such legal actions would be the functional linchpins of the argument that the original interpretation of the law was cumulative, and the intervening years have brought a corrupted interpretation in their stead.
More recent lawsuits by private citizens presuming to speak for the states do not count, and not for arbitrary reasons.
1) The decision of the court went against them. In real terms, the plaintiff’s arguments have not been made law, and therefore are irrelevant for the most part to discussions of what is legally proper at this time. A person may site this as their opinion and disagree with the Supreme Court, but their opinion will carry no legal weight.
2) They have no standing to argue the case, If I’m not mistaken. A person can’t sue an automaker for a defect in a car if they never drove that car. One must be affected by the defendant’s behavior in terms of the legal controversy to actually sue. The states would be the wronged party here, and it would be their call, their right to sue if they didn’t think a proper interpretation was made by Congress.
3) The point is to seek out evidence that the cumulative interpretation was in actual use during the early history of the United States, to find evidence that the states felt slighted, protested the issue, and then fell silent. Modern cases would not be relevant to proving or disproving that question.
As for the cases?
What they are actually about is far from immaterial. Arguments like this are constructed towards a purpose. If the case doesn’t touch upon conventions in its substance, and all a person has cited is Constitutional quotations or general statements about construction of legal arugments, that’s not good enough. We must look at the controversy, the argument made to settle it, and the rulings and decisions that were born of that. Otherwise, the relevance to the issue at hand will be poor at best, merely coincidental at worst.
My brother is a lawyer. I have heard him talk about how dumb some lawyer’s arguments are. Not everybody who is in practice actually knows what they’re doing. Just the claim of a profession does not amount to expertise in that particular field, and people in that line of work are no stranger to biases, especially when they’re arguing on behalf of a client. As for judges? Well, I think plenty of folks are familiar with people in such positions. a Judgeship does not necessarily correspond to expertise in the law. There is no examination required to become a judge, no special legal training in our country that’s required. One can be elected a judge without a law degree, and be appointed one in the same way.
None of the cases cited have a Constitutional convention as their subject. Only one deals with conventions, and that’s state conventions to ratify the amendment. None of the cases, so far as I can tell, even addresses a convention, much less decides between a cumulative interpretation and a concurrent interpretation. Nor do any of them build on law purposed to such a distinction.
Everything that’s cited seems purposed in your argument towards emphasizing proper interpretation. Nothing speaks to what makes that interpretations proper, or yields evdience of what the standard applied was. The argument simply goes in circles asserting it’s conclusion, but continually committing the fallacy of petitio principii, begging the question of what makes it the proper interepretation. No history has been offered, whether legal or academic, to demonstrate the usage of the cumulative standard. No framers arguments clearly referring to a standard where convention calls just pile up has been found. No legal argumentation points to any such opinion. The only thing that this particular argument relies on is boundless faith that the framers intended the counting of the calls to be an indefinite affair, rather than being counted concurrently.
Boundless faith is no foundation for law. Skepticism is. We cannot simply assume things. Whether we strictly construe or intepret more liberally, we cannot rest on our interpretations without testing their logic effectively
What makes me sad here is the care you put into trying to style this into some sort of jaunty verbal fencing match. You go for style and you cherrypick cases for restatements of the phrases you use to support your own opinion. You don’t realize it, but you’re focusing your efforts in the wrong places. The real crux here is whether anybody has ever used, much less defended or fought for this suppposedly original standard. If not, we have no reason to consider the modern concurrent standard as an aberration, and every reason to disregard an argument that itself seems to be built on a technicality of language.
Posted by: Stephen Daugherty at October 22, 2007 05:30 PMRob-
The only Amendment to take more than four years to be ratified was the 27th, and that was so anamolous to even the states themselves that a)many of the votes were rather recent, date-wise, and b)many states that voted for it some time ago felt the need to reiterate their votes
We’re not talking about ratification here, but proposal. Since every proposal was an act of Congress, every proposal was consented two by both houses of congress contemperaneously. They thereby reflected the greater part of the political consensus.
The question is, why would we enable the states to propose Amendments with any less of a political consensus?
Moreover, why would we take a clause that is meant to give the states more potential say in the government, and create a system that could potentially strip many of them of the immediate choice of whether to convene a convention? It would be like going in and letting Congress propose Amendments on simple majorities, or outright minorities. The consensus ensures that a critical number of states are on board, instead of having them be dragged unwillingly into it.
Posted by: Stephen Daugherty at October 22, 2007 07:07 PMStephen Daugherry wrote: d.a.n- Proponents of a cumulative interpretation point to original intent and the plain and obvious meaning of the text. Logically speaking, proving original intent requires that one weigh in with evidence supporting the notion that this was the original position.False. Congress can not disobey the Constitution. It can not add new or remove old words from it without an amendment.
Stephen Daugherry wrote: In short, somebody has to talk about it in a matter germane to the interpretation they’re supposed to have.The only re-interpretations being attempted are by the opponents to Article V.
Stephen Daugherry wrote: I went through the minutes of the constitutional convention, and didn’t find one mention of it. My objections on the subject of Alexander Hamilton’s commentary are well known. He spoke of unions, of uniting, of concurring, all activities that do not happen piecemeal, or by unrelated accumulation.There is nothing in the Federalist papers that equate “unite”, “union”, or “concurring” to “contemporanouesly” or “same-subject”. Such assertions are reaching and re-intertpretations.
Stephen Daugherry wrote: As far as case law would go, there is a valid legal question of standing, as to who they can represent. In previous arguments, the point about these cases was also made regarding what kind of cases would be of interest: those close to the beginning of American history on the constitution, so as to test the theory that this was the original method considered.Look above. Over a dozen cases listed above deal with Article V and interpretations of the Constitution.
Stephen Daugherry wrote: Repetition of principles of strict construction and restatings of the words of Article V in case law are irrelevant to such a test of the theory unless it is clear that a cumulative interpretation is clear and obvious to the people in question, or the states themselves file suit to get that convention, and the court grants them that right in the face of congressional resistance.There is no question about the clear, “plain and obvious” meaning of Article V. That is supported in United States v. Sprague, 282 U.S. 716 (1931) where the Supreme Court stated: “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the ap-plication of the legislatures of two-thirds of the States, must call a convention to propose them.”
Notice the words: article 5 clear in statement and in meaning, and “A mere reading demonstrates that this is true”.
Stephen Daugherry wrote: Such legal actions would be the functional linchpins of the argument that the original interpretation of the law was cumulative, and the intervening years have brought a corrupted interpretation in their stead.The only corrupted interpretations come from opponents of Article V that try to re-interpret “whenever” to “contemporaneously” and/or “amendments” to “same-subject amendments”. It’s obviously reaching and hard to deny.
Stephen Daugherry wrote: More recent lawsuits by private citizens presuming to speak for the states do not count, and not for arbitrary reasons.False. Any citizen can file a law suit with regard to the Constitution. The two cases submitted by Walker were dismissed on technicalities that had nothing to do with Article V. There was no ruling that Congress can legally violate Article V. If so, show it to us.
Stephen Daugherry wrote: 1) The decision of the court went against them. In real terms, the plaintiff’s arguments have not been made law, and therefore are irrelevant for the most part to discussions of what is legally proper at this time. A person may site this as their opinion and disagree with the Supreme Court, but their opinion will carry no legal weight.The recent cases were dismissed for reasons that had nothing to do with Article V. But they are not unimportant or insignificant. All it proves is that the Supreme Court has not yet been forced to deal with the question of why Congress has not yet called an Article V Convention.
Stephen Daugherry wrote: One must be affected by the defendant’s behavior in terms of the legal controversy to actually sue. The states would be the wronged party here, and it would be their call, their right to sue if they didn’t think a proper interpretation was made by Congress.Congress can be sued. The Supreme Court, if forced to do so, will have to make a ruling on Article V and whether Congress is in violation of it.
Stephen Daugherry wrote: 3) The point is to seek out evidence that the cumulative interpretation was in actual use during the early history of the United States, to find evidence that the states felt slighted, protested the issue, and then fell silent. Modern cases would not be relevant to proving or disproving that question.Evidence of accumulation is not needed. The literal, “plain and obvious” text of Article V is all that is required. The Constitution must be obeyed, and Congress can not add new words, or remove old words without an amendment. No such amendment was submitted to the states to modify Article V.
Stephen Daugherry wrote: As for the cases? What they are actually about is far from immaterial.False. What is important about the cases are what they explicitly state about “article 5”, “conventions”, and interpretations of the Constitution.
Stephen Daugherry wrote: Arguments like this are constructed towards a purpose. If the case doesn’t touch upon conventions in its substance, and all a person has cited is Constitutional quotations or general statements about construction of legal arugments, that’s not good enough.False. Several statesments from those cases explicitly refer to “article 5” and “convention”. There is nothing general about that. They are public record.
Stephen Daugherry wrote: We must look at the controversy, the argument made to settle it, and the rulings and decisions that were born of that. Otherwise, the relevance to the issue at hand will be poor at best, merely coincidental at worst.False. The statements by the court are very specific, and explicityly reference “article 5” and an Article V “convention”.
Stephen Daugherry wrote: My brother is a lawyer. I have heard him talk about how dumb some lawyer’s arguments are. Not everybody who is in practice actually knows what they’re doing. Just the claim of a profession does not amount to expertise in that particular field, and people in that line of work are no stranger to biases, especially when they’re arguing on behalf of a client. As for judges? Well, I think plenty of folks are familiar with people in such positions. a Judgeship does not necessarily correspond to expertise in the law. There is no examination required to become a judge, no special legal training in our country that’s required. One can be elected a judge without a law degree, and be appointed one in the same way.Yeah right … of course, everyone else is wrong.
Never mind the literal, “plain and obvious” text of Article V and United States v. Sprague, 282 U.S. 716 (1931) in which the court stated: “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the ap-plication of the legislatures of two-thirds of the States, must call a convention to propose them.”
Notice the words “article 5 is clear in statement and in meaning, and contains no ambiguity,”?
Notice the words “must call a convention”?
Stephen Daugherry wrote: None of the cases cited have a Constitutional convention as their subject.Nonsense. They explicitly reference “Article V” and the “conventions”.
Stephen Daugherry wrote: Only one deals with conventions, and that’s state conventions to ratify the amendment. None of the cases, so far as I can tell, even addresses a convention, much less decides between a cumulative interpretation and a concurrent interpretation. Nor do any of them build on law purposed to such a distinction.That is immaterial. What is important are the courts rulings and statements that explicity refer to “Article V” and “conventions”.
Stephen Daugherry wrote: Everything that’s cited seems purposed in your argument towards emphasizing proper interpretation.Nonsense. It’s public record. Feel free to disprove it. The court’s many statements are very specific and explicitly reference “Article V” and “convenitons” and there are numerous examples of the Supreme Court’s statements with regard to interpretations.
Stephen Daugherry wrote: Nothing speaks to what makes that interpretations proper, or yields evdience of what the standard applied was.There is little to interpret with the literal, “plain and simple” meaning of Article V.
Re-interpretations are the tactic of those that oppose Article V. That is what frustrates opponents ot Article V. There is no ruling that allows Congress to violate Article V.
Stephen Daugherry wrote: The argument simply goes in circles asserting it’s conclusion,The arguments in opposition to the literal, “plain and obvious” meaning of Article V are what truly go in circles. Where’s this mountain of evidence that supports any re-interpretation of Article V? Good luck. It does not exist.
Stephen Daugherry wrote: … but continually committing the fallacy of petitio principii, begging the question of what makes it the proper interepretation.The only fallacy here is trying to refute the literal, “plain and obvious” meaning of Article V. I’ve shown dozens of cases directly referencing “article 5”, “conventions”, and interpretations of the Constitution.
Stephen Daugherry wrote: No history has been offered, whether legal or academic, to demonstrate the usage of the cumulative standard.No history is required. The literal, “plain and obvious” text of Article V is all that is needed. But I also listed dozens of cases directly referencing “article 5”, “conventions”, and interpretations of the Constitution.
Stephen Daugherry wrote: No framers arguments clearly referring to a standard where convention calls just pile up has been found.False. The Federalist #85 supports Article V. There is nothing in Federalist #85 to allow an re-interpretation of “whenever” ot “whenever contemporaneously”, and/or “amendments” to “same-subject amemdments”. Besides, there have already been 4 instances when two-thirds of the states submitted same-subject amendment applications.
Stephen Daugherry wrote: No legal argumentation points to any such opinion.False. Article V by itself is sufficient, but I listed dozens of cases directly referencing “article 5”, “conventions”, and interpretations of the Constitution.
Stephen Daugherry wrote: The only thing that this particular argument relies on is boundless faith that the framers intended the counting of the calls to be an indefinite affair, rather than being counted concurrently.False. Article V by itself is sufficient, but I listed dozens of cases directly referencing “article 5”, “conventions”, and interpretations of the Constitution. For example, in Dodge v. Woolsey, 59 U.S. 331 (1855), the court stated: “The Court has specifically addressed the obligatory nature of the convention clause in Article V in case. The interpretation was always the same: Congress must call a convention. And in United States v. Sprague, 282 U.S. 716 (1931), the final Supreme Court stated: “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the ap-plication of the legislatures of two-thirds of the States, must call a convention to propose them.”
Stephen Daugherry wrote: Boundless faith is no foundation for law.Don’t need blind faith. All a person needs is to know how to read.
Stephen Daugherry wrote: Skepticism is. We cannot simply assume things. Whether we strictly construe or intepret more liberally, we cannot rest on our interpretations without testing their logic effectivelyFalse. There is no re-interpretation required when the literal, “plain and obvious” text makes it very clear and the Supreme Court has confirmed the meaning of Article V several times (see list above).
Stephen Daugherry wrote: What makes me sad here …Sad? Yeah right.
Stephen Daugherry wrote: What makes me sad here is the care you put into trying to style this into some sort of jaunty verbal fencing match.False. All I’ve done is present the facts.
You’ve had ample opportunity to disprove those facts and have not.
Perhaps your sadness is the frustration with the weakness of your argument?
Verbal fencing match?
It’s a debate. Nothing more.
There is no reason to resort to personal attacks.
Resorting to personal attacks simply demonstrates that your statements are weak and/or have no credibility.
Stephen Daugherry wrote: You go for style and you cherrypick cases for restatements of the phrases you use to support your own opinion.False. I simply listed many relevant court cases, and the literal, “plain and obvious” text of Article V.
Those are not my opinion.
Those are statements from the Supreme Court. Not mine.
Stephen Daugherry wrote: You don’t realize it, but you’re focusing your efforts in the wrong places.False. Others and myself are working on getting an Article V Convention. That may require another lawsuit that does not muddy the goal with other disqualifying goals that can lead to dismissal on a technicality. Much was learned from the first two cases.
Stephen Daugherry wrote: The real crux here is whether anybody has ever used, much less defended or fought for this suppposedly original standard. If not, we have no reason to consider the modern concurrent standard as an aberration, and every reason to disregard an argument that itself seems to be built on a technicality of language.False. There are plenty of people that understand Article V perfectly, including the Supreme Court which stated in United States v. Sprague, 282 U.S. 716 (1931): “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the ap-plication of the legislatures of two-thirds of the States, must call a convention to propose them.”
That seems pretty clear, eh?
Stephen Daugherry wrote: We’re not talking about ratification here, but proposal. Since every proposal was an act of Congress, every proposal was consented two by both houses of congress contemperaneously. They thereby reflected the greater part of the political consensus.Funny! I could have sworn someone tried to use the ratification angle above to argue against the meaning of “whenever”. Never mind the 27th Amendment took 220 years to ratify.
Stephen Daugherry wrote: Moreover, why would we take a clause that is meant to give the states more potential say in the government, and create a system that could potentially strip many of them of the immediate choice of whether to convene a convention?Nonsense. Opposing Article V is what strips power from the states, despite the 523 amendemnt applications by all 50 states.
Stephen Daugherry wrote: It would be like going in and letting Congress propose Amendments on simple majorities, or outright minorities. The consensus ensures that a critical number of states are on board, instead of having them be dragged unwillingly into it.Nonsense. It takes three-fourths of the states to ratify any amendment. That is not a minority. Such a statement has no credibility.
It’s not that complicated.
But mounting a successful legal case is not easy.
There are many rules and roadblocks (such as the length of the original breif, which had to be reduced from 876 pages to 781 pages).
If you’d like to learn more about it, visit FOAVC.ORG or ARTICLE5.ORG.
Here’s the F.A.Q.
False. Congress can not disobey the Constitution. It can not add new or remove old words from it without an amendment.Before disobedience can be established, it must first be determined whether the Cumulative interpretation has ever compelled obedience to begin with.
The only re-interpretations being attempted are by the opponents to Article V.The question of what is interpretation and reinterpretation is primary here. Nobody has voiced opposition to Article V. That’s a strawman argument.
There is nothing in the Federalist papers that equate “unite”, “union”, or “concurring” to “contemporanouesly” or “same-subject”. Such assertions are reaching and re-intertpretations.If the bride leaves the groom at the altar, one can hardly say they are united in Matrimony. Nor could we call ourselves the United States if our nation was composed of a shifting alliance between independent states. To be united is to be together at once. Unions are not unions if they don’t act together. As for Concurrence?
1: to act together to a common end or single effect
2 a: approve b: to express agreement
3obsolete : to come together : meet
4: to happen together : coincide
Look above. Over a dozen cases listed above deal with Article V and interpretations of the Constitution.
None deal with cases where somebody is claiming that the calls have been made, much less cite the cumulative interpretation as the only true reading of the application clause.
Evidence of an interpretation would be the follow of that interpretation to its logical end. First, the case would probably have to be mostly about this issue, if not all the way about it. The Supreme Court has no patience for rulings that present no clear questions of law. The states or their appointed representative would have to sue Congress for relief on the issue, the courts would have to take it up, the cumulative interpretation would have to be weighed on its merits, and found to be the proper interpretation. Then, the Supreme Court would have to order that Congress carry it out.
Then and only then, could you say that yours is the right interpretation. The further back in time one found this, the better. The point would be that somebody had decided that the constitutiona law meant what you had say.
Without such evidence, you cannot truthfully accuse Congress of breaking the law, because nothing sets your interpretation as law. There’s overwhelming evidence for the concurrent standard, in how the states have made their calls, and what they have not asked of the Courts or Congress in the meantime.
False. Any citizen can file a law suit with regard to the Constitution. The two cases submitted by Walker were dismissed on technicalities that had nothing to do with Article V. There was no ruling that Congress can legally violate Article V. If so, show it to us.Yeah, and any judge can dismiss the case as frivolous if they don’t have any real complaint or greivance, or standing in the case. If the states are complaining, Walker doesn’t get to do the complaining for them.
The recent cases were dismissed for reasons that had nothing to do with Article V. But they are not unimportant or insignificant. All it proves is that the Supreme Court has not yet been forced to deal with the question of why Congress has not yet called an Article V Convention.Why has nobody done this up to now, if your interpretation was the original? If the concurrent intepretation were that controversial, that poorly founded, we’d have seen challenges early on.
Interpretations like this would hardly have been ignored if they were the original, but all the evidence seems to point to that.
Evidence means more than the most fervent belief. Lawyers and judges are not granted infallibility by their position or profession it is an inappropriate appeal to authority to say your interpretation is sound and valid because of the profession of those submitting it.
History is necessary because the law and the constitution remain meaningless until put into practice. How these laws are carried out and understood is crucial to determiming just what is considered law.
Funny! I could have sworn someone tried to use the ratification angle above to argue against the meaning of “whenever”. Never mind the 27th Amendment took 220 years to ratify.The 27th Amendment is the exception that proves the rule. As follows:
Two years to ratify the bill of rights One year to ratify the 11th Amendment One year to ratify the 12th Amendment Less than a year to ratify the 13th Amendment Two years to ratify 14th Amendment One year to ratify 15th Amendment Four years to ratify 16th One year to ratify the 17th Two years to ratify the 18th One year to ratify the 20th Less than a year to ratify the 21st Four years to ratify the 22nd Amendment One year to ratify the 23rd Two years to ratify the 24th Two years to ratify the 25th Less than a year to ratify the 26th. 203 years to ratify the 27th
The 27th is an anomaly, not a typical example. And yes I can that because I’ve listed every other amendment, more or less, and presented the time it took to ratifiy it.
Nonsense. Opposing Article V is what strips power from the states, despite the 523 amendemnt applications by all 50 states.You unfortunately see this in terms of the power wielded by the states that make the call. But what about those who don’t, at that time? What about the states that don’t want the convention called. The constitution is built to protect the states from each other’s use of centralized power. Situations where potential concentrations of power loom are defused by the requirements that the constitution puts on state and federal governments.
As for mounting a successful case, I think you should take a step back and ask yourself just why somebody needs 876 to 781 pages to convince anybody of something that’s supposed to be self evident.
Posted by: Stephen Daugherty at October 22, 2007 10:45 PMI apologize, the list of amendments got screwed up. It is as follows:
Two years to ratify the bill of rights.
One year to ratify the 11th Amendment.
One year to ratify the 12th Amendment.
Less than a year to ratify the 13th Amendment.
Two years to ratify 14th Amendment.
One year to ratify 15th Amendment.
Four years to ratify 16th.
One year to ratify the 17th.
Two years to ratify the 18th.
One year to ratify the 20th.
Less than a year to ratify the 21st.
Four years to ratify the 22nd Amendment.
One year to ratify the 23rd.
Two years to ratify the 24th.
Two years to ratify the 25th.
Less than a year to ratify the 26th.
203 years to ratify the 27th.
Posted by: Stephen Daugherty at October 22, 2007 10:50 PMStephen Daugherry wrote: Before disobedience can be established, it must first be determined whether the Cumulative interpretation has ever compelled obedience to begin with.False. All tha that is required is to show that Article V is being violated. It is. Two law suits have been filed. More will follow. The states which have already filed 523 amendment requests will finally understand that Congress is violating Article V.
Stephen Daugherry wrote: The question of what is interpretation and reinterpretation is primary here. Nobody has voiced opposition to Article V. That’s a strawman argument.False. Hundreds of persons at FOAVC.ORG would disagree. Sabato would disagree. How does that equate to “nobody”?
Stephen Daugherry wrote: If the bride leaves the groom at the altar, one can hardly say they are united in Matrimony. Nor could we call ourselves the United States if our nation was composed of a shifting alliance between independent states. To be united is to be together at once. Unions are not unions if they don’t act together. As for Concurrence? To Concur: 1: to act together to a common end or single effect 2 a: approve b: to express agreement 3obsolete : to come together : meet 4: to happen together : coincide“united”, nor “unions”, nor “act together” does not equates to “whenever” or “same-subject”. That is reaching and stretching. The Supreme Court already stated in United States v. Sprague, 282 U.S. 716 (1931), the final Supreme Court stated: “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the ap-plication of the legislatures of two-thirds of the States, must call a convention to propose them.”
Stephen Daugherry wrote: None deal with cases where somebody is claiming that the calls have been made, much less cite the cumulative interpretation as the only true reading of the application clause.Nonsense. They clearly and explicity referenece “article 5”, “convention”, and other statements that reject reaching statements.
Stephen Daugherry wrote: Evidence of an interpretation would be the follow of that interpretation to its logical end. First, the case would probably have to be mostly about this issue, if not all the way about it. The Supreme Court has no patience for rulings that present no clear questions of law. The states or their appointed representative would have to sue Congress for relief on the issue, the courts would have to take it up, the cumulative interpretation would have to be weighed on its merits, and found to be the proper interpretation. Then, the Supreme Court would have to order that Congress carry it out.Where is this evidence of a re-interpretation?
Stephen Daugherry wrote: Then and only then, could you say that yours is the right interpretation.You keep trying to turn this into a personal issue. That is a sure sign of a weak/lame argument.
It’s not my interpretation. It’s just the simple, literal, “plain and obvious” text of Article V.
Stephen Daugherry wrote: The further back in time one found this, the better. The point would be that somebody had decided that the constitutiona law meant what you had say.More grasping at straws.
Stephen Daugherry wrote: Without such evidence, you cannot truthfully accuse Congress of breaking the law,I most certainly can.
Congress is violating Article V of the U.S. Constitution.
And they can’t do a damn thing about it because they know it is true.
They know they are violating Article V.
They can’t even get in-synch on the reason.
Stephen Daugherry wrote: … because nothing sets your interpretation as law.The Constitution is the Supreme Law of the Land.
Stephen Daugherry wrote: There’s overwhelming evidence for the concurrent standard, in how the states have made their calls, and what they have not asked of the Courts or Congress in the meantime.False. There is ZERO evidence. If it existed, you would have presented it instead of your lame opinions without any cases to substantiate it.
Stephen Daugherry wrote: Yeah, and any judge can dismiss the case as frivolous if they don’t have any real complaint or greivance, or standing in the case. If the states are complaining, Walker doesn’t get to do the complaining for them.False. Anyone can sue Congress. Look it up if you don’t believe it.
Stephen Daugherry wrote: Why has nobody done this up to now, if your interpretation was the original?Because the “clear and distinct”, “plain and obvious”, literal text of Article V does not require much interpetation. It is very clear. In United States v. Sprague, 282 U.S. 716 (1931), the final Supreme Court stated: “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them.” What part of the statements by the Supreme Court (i.e. “no ambiguity” and “clear in statement and meaning”) do you not understand?
Stephen Daugherry wrote: If the concurrent intepretation were that controversial, that poorly founded, we’d have seen challenges early on. Interpretations like this would hardly have been ignored if they were the original, but all the evidence seems to point to that.False. Like slavery existed for almost a century after the first convention?
That argument is full of holes. Crimes and violations often exist for a long time before they are finally confronted and dealt with.
Stephen Daugherry wrote: Evidence means more than the most fervent belief.Those are good words. People should practice they preach.
Where is this mountain of evidence that you keep speaking of?
Stephen Daugherry wrote: Lawyers and judges are not granted infallibility by their position or profession it is an inappropriate appeal to authority to say your interpretation is sound and valid because of the profession of those submitting it. History is necessary because the law and the constitution remain meaningless until put into practice. How these laws are carried out and understood is crucial to determiming just what is considered law.Whatever. It’s not my interpretation. An 12 year old could understand the literal text of Article V.
So, where is this so-called mountain of evidence that you speak of. Show us the ruling that allows Article V to be disobeyed. Show us the ruling.
Stephen Daugherry wrote: 203 years to ratify the 27th. The 27th is an anomaly, not a typical example. And yes I can that because I’ve listed every other amendment, more or less, and presented the time it took to ratifiy it.Immaterial. I’ll use your own words …
Stephen Daugherry wrote: We’re not talking about ratification here, but proposal.
Stephen Daugherry wrote: You unfortunately see this in terms of the power wielded by the states that make the call.It’s not my interpretation.
It is quite simply the “clear and distinct” and “plain and obvious” meaning of Article V that gives states the right to submit applications.
It is a check/balance against a corrupt federal government.
That is reaffirmed in the Federalist papers and many Supreme Court statements.
Stephen Daugherry wrote: But what about those who don’t, at that time? What about the states that don’t want the convention called.The states were not aware that Congress would violate Article V. Many are only now realizing the violation. It will go to the Supreme Court again.
Stephen Daugherry wrote: The constitution is built to protect the states from each other’s use of centralized power.Then why oppose Article V which allows the states the right to amend the Constitution if three fourths of the states ratify it?
If you’d like to learn more about it, visit FOAVC.ORG or ARTICLE5.ORG.
Here’s the F.A.Q.
Stephen,
I don’t disagree with your feeling. I disagree with your facts. The facts based on the current Supreme Court case law that I have found has made this solely the decision of Congress.
I believe that they will continue to use the contemporaneous standard, but they could use another if they desired. If they did so, I would imagine that it would be challenged, but based on precedence, I’m not sure that it would be given cert.
For what it’s worth, I think your argument equating the proposing time period for Congress with that of the States is a stretch. Congress is operated under parliamanentarian rules that require contemporaneous action. The States do not.
In the last thread, I suggested an ammendment that would clarify the whole thing by making the calling of an Article V convention by the states operate under the same Parliamentarian rules by making either the Senate or the Congress vote as directed by the States. I think that this would solve the whole problem (but it is a small enough problem that it is probably not worth the time and effort to solve it).
This whole debate reminds of the old saw about academic politics, “they are so vicious because so little is at stake”. There is so little chance of this happening that it makes for a great debate because there is very little supporting facts for either argument and those that are there are difficult to find.
Posted by: Rob at October 23, 2007 11:51 AMRob-
What makes me doubtful about non-concurrent standards is that nobody has ever dealt with it that way. What I keep on telling Dan is that you can’t call something an original interpretation unless it’s there at the beginning.
Moreover, I think the spirit of the law is important here. Under a non-concurrent system, you will almost always, by definition, have fewer than two thirds of the states actually voting to trigger a convention. Think about it this way: inevitably, the first set of calls falls short. Then, subsequently, the next set of calls does one of three things:
1) It falls short, closing the margin. That means that any state that wants to have a convention has the power to do so despite what might be even greater opposition by the other states to the idea.
2) It hits the mark exactly, in which case fewer than two thirds of the states at a timer are needed to call the convention.
3) There are more than enough calls, which means the other calls carry over into closing the mark on the next convention, which is essentially 2) leading to 1) all over again.
The only alternative to these three scenarios is for there to be exactly 34 votes. Any more and we have a fifth scenario to deal with, where the additional votes go into calling the next convention after that.
Anybody who thinks this is simple way to call a convention must have experience with some pretty fricking byzantine operations, because this just strikes me as excessively complicated way to meet the two-thirds margin.
If we simply assume that the states are taking the place of the Congress and acting in their stead, what we will have is something far simpler, where the power of each vote is equal, and no state will be dragged into something except by the overwhelming consensus of the states. Thirty four votes or more, and a convention is called. Less, and it is not. No carryin