April 23, 2008
How Hillary Can Knock-Out Obama
Now is the time for Hilary Clinton to take a bold position that in one brilliant, courageous stroke shows the nation that she is more willing to pursue true reforms of the two-party plutocratic political system than Obama is.
With this position she can reveal that all the Obama talk about change is just a clever campaign strategy to seduce people who rightfully are fed up with politics as usual.
With this single position she can transform herself from status-quo-political-establishment-candidate to a true believer in what the Founders gave us in the Constitution: the right to turn public mistrust and lack of confidence in the federal government into peaceful constitutional problem solving. When 81 percent of Americans think the country is on the wrong track, then the constitutional path to reform should be used.
How can a true political leader do better than advocating use of what is sitting right there in our beloved Constitution?
How can a candidate advocating solutions for America do better than supporting what has already been used hundreds of times by the states, but has been blocked by fearful political forces for over 200 years at the federal level?
How could Obama tell the nation that he does not believe in using what the Constitution says we have a clear right to use? How could this self-professed change agent say he is against using the peaceful constitutional path to examining profound political reforms? Neither Obama nor McCain would find it easy to say that what the Founders gave us in our Constitution should not be used. Indeed, as Senators, would they introduce a bill to amend the Constitution to remove this option? I think not.
Sometimes, a great notion just needs to be articulated for people to see the clear way forward. Now is the ideal time for Hillary Clinton to say to Americans that she agrees that the political system must be fixed and that the time has arrived for a serious national discussion of political reforms that only can be achieved through constitutional amendments, because Congress has shown no inclination for pursuing deep, systemic political reforms.
The constitutional alternative is to use what is in Article V: a convention of state delegates that is given the constitutional power that so far only Congress has used, to debate and consider proposals for constitutional amendments. The Framers brilliantly created both this option and the safety net that proposed amendments, like those from Congress, must be ratified by three-quarters of the states. Nor can a totally new Constitution be considered, only amendments to the present one.
Clinton would have history and facts on her side. The clarity of the Article V convention option in the Constitution is undisputed. Better yet, the one and only stated requirement for Congress to obey for convening the convention has already been satisfied – namely that two-thirds of state legislatures ask Congress for a convention. Indeed, there have been over 500 such state requests from all 50 states. Hillary could state very simply that the time is long overdue for Congress to obey the Constitution and convene a convention. She could introduce a bill that says exactly that to show that she is really true to her words.
There have been several important books from respected academics that provide the intellectual ammunition for taking this bold position. These include: “A More Perfect Constitution” by Larry Sabato; “The Second Constitutional Convention: How The American People Can Take Back Their Government” by Richard Labunski; and “Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)” by Sanford Levinson.
In other words, advocating the nation’s first use of an Article V convention is no far-out, brainless idea. Indeed, it is exactly what the nation needs at this time and exactly what any political leader that claims both to love our Constitution and see the need for political reforms should support.
Clinton can give many examples of what a convention could consider proposing, including amendments that: make universal health insurance coverage a constitutional right; replace the Electoral College with the popular vote for president and vice-president; take all private money out of political campaigns and replaces it with total public campaign financing; clarify that only Congress can declare war and must do so explicitly.
Be brave Hillary. Do what is both right and politically dazzling.
Posted by Joel S. Hirschhorn at April 23, 2008 07:18 PMDon’t do it, Hillary! Don’t listen to Joel! For most of this primary season I was cheering on Hillary in order to provide John McCain with easy prey. Now that Barack Hussein Obama has been brought back down to earth, it’s abundantly clear that he has a glass jaw. Christopher Hitchens said months ago that BHO was “a shallow, flaky candidate”, and I thought he was nuts. I was wrong. Obama has shown how to go for the big firepower when shooting oneself in the foot. I now want Obama to take the nomination soon so he can hurry up and implode in the general.
Posted by: Duane-o at April 23, 2008 11:57 PMDon’t do it, Hillary! Don’t listen to Joel! For most of this primary season I was cheering on Hillary in order to provide John McCain with easy prey. Now that Barack Hussein Obama has been brought back down to earth, it’s abundantly clear that he has a glass jaw. Christopher Hitchens said months ago that BHO was “a shallow, flaky candidate”, and I thought he was nuts. I was wrong. Obama has shown how to go for the big firepower when shooting oneself in the foot. I now want Obama to take the nomination soon so he can hurry up and implode in the general.
Posted by: Duane-o at April 24, 2008 12:41 AMI totally agree with the above…
The chance is there. If she become il Presidente she definitely will pursue major reforms… She has the brain, the will and the strength…
Obamatics have become so blind, they can not see further than their noses…
Obamatics have become so blind, they can not see further than their noses…
Ideological rhetoric without the any solid plan of how to deal with those three major issues (1. the WAR; 2. weak Economy; 3. the Environment) that are affecting our lives is just a hole in the water…
Obama’s speech after he lost in Pennsylvania, was long, boring, repetitive, talked more against McCain than analyzing why he is not able to win in big states and metropolitan cities!!! Obama is lost in his narcistic believes that the American society owes him the presidency because he is black… It is a kind of a Presidential Affirmative Action. Doesn’t matter that the others are far more prepared than him…
Joel,
You must be kidding. Here is the text of Article V:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Where, pray tell, does the Executive Branch come into play with an Article V convention? Why should any presidential candidate advocate this kind of convention, when they would have absolutely no say over who the delegates would be, or what issues would be addressed?
Posted by: phx8 at April 24, 2008 02:06 AMJoel Hirschhorn wrote: Now is the ideal time for Hillary Clinton to say to Americans that she agrees that the political system must be fixed and that the time has arrived for a serious national discussion of political reforms that only can be achieved through constitutional amendments, because Congress has shown no inclination for pursuing deep, systemic political reforms. The constitutional alternative is to use what is in Article V: a convention of state delegates that is given the constitutional power that so far only Congress has used, to debate and consider proposals for constitutional amendments.
Good idea!
There are so many simple things like that one simple idea, which raises genuine questions about the politicians’ sincerity about real reforms, problem solving, and their oath to protect and uphold the U.S. Constitution.
However, upholding the Constitution is not only out-of-style these days, but it isn’t politically correct, even if one of the candidates (Barack Obama) taught Constitutional law.
After all, all members of Congress are in violation of Article V, not to mention these other constitutional violations.
It’s blatant lawlessness, which is at the top of the list of abuses hammering most Americans and creating the worst economic conditons ever, and/or since the 1930s and 1940s.
At any rate, the voters have the government that the voters elected (and deserve), and repeatedly rewarding irresponsible incumbent politicians in the two-party duopoly in Congress with 93%-to-99% re-election rates isn’t working, is it ?
Posted by: d.a.n at April 24, 2008 09:08 AMJust to be clear: I am totally against Clinton and Obama because they are both servants of the corrupt two-party plutocracy. My aim in writing the article was to show the absurdity of Americans counting on major-party candidates for true political reforms. Clinton, more than Obama, could make use of advocacy for an Article V convention, but make no mistake — if Obama had any real integrity he would be supporting a convention. And be clear: as Senators Clinton and Obama could definitely ACT NOW to show the public they support a convention, and even though a president has no role in a convention, they could use the power of their office to build public support for the first convention!!!!
Posted by: Joel S. Hirschhorn at April 24, 2008 09:29 AMHillary can knock out Obama by making him think for himself rather than depending on soundbytes generated by former John Edwards speechwriters. He is the epitome of the “Being There” candidate- a man who says bland platitudes in answer to difficult questions and then benefits from the the vacuous (or self deceiving) hopefulness of the audience to fill in the empty space with profundity.
Posted by: Lee Jamison at April 24, 2008 09:31 AMI don’t understand where people get the idea that the people at such a convention would not be the normal partisan political operatives. Would political virginity be required to be a member? That said I think we need an amendment to eliminate the electoral college. There should be something about the budget too, zeroing out many programs and departments that continue to exist, even though they duplicate eachother’s missions. Is it too much to hope for a balanced budget amendment, or would the politicians just keep figuring out ways to get around it? It would be nice if they could get two states to combine so we could have even numbers of stars in the rows on the flags. 50 seems like an unlucky number, I think 49 would be better.
Posted by: ohrealy at April 24, 2008 09:42 AMAnd let’s move the capital from Washington DC, to Nauvoo, Illinois. The rest of DC should become a museum didstrict, and be part of Maryland.
Posted by: ohrealy at April 24, 2008 09:44 AMARBEN Camaj wrote: Obamatics have become so blind, they can not see further than their noses…Perhaps it only appears that way because most (if not all) of the politicians are …
can not see further thanlooking down their noses … ?
Joel Hirschhorn wrote: My aim in writing the article was to show the absurdity of Americans counting on major-party candidates for true political reforms.Joel, You are absolutely correct. The hypocrisy is so easily revealed by your simple test (i.e. merely obey the U.S. Constitution).
There are other simple, no-brainer things that could be done if politicians were genuinely serious about problem solving and badly needed reforms.
Many common-sense, no-brainer reforms are needed, but an Article V Convention is very unlikely when the incumbent politicians holding the reins of power (i.e. Congress) are also very unlikely to ever call a peremptory Article V Convention, since they know damn well things like a balanced budget amendment, Term-Limits, Campaign Finance Reform, Tax Reform, Election Reform, One-Purpose-Per-BILL amendment, etc. will be on the table.
ohrealy wrote: That said I think we need an amendment to eliminate the electoral college. . . There should be something about the budget too.I agree (for more information about the process and protections (e.g. 3/4 states required to ratify any amendment), see the Article V FAQ.
However, will it do any good to make new laws or changes (amendments) when our existing laws and the U.S. Constitution are so blatantly ignored, such as existing illegal immigration laws, spying without a warrant, Habeaus Corpus, eminent domain abuse, torture, Article 1 - Section 8, Article 1 - Section 9, Article 3 - Section 1, Article 4 - Section 4, Article 5, the 2nd, 4th, 5th, 6th, 7th, 9th, and 10th Amendments, possibly the 16th Amendment, etc.? - one-simple-idea.com/ConstitutionalViolations1.htm
Besides, if enough voters are upset enough about it, why do they repeatedly reward Congress with 93%-to-99% re-election rates? - one-simple-idea.com/CongressMakeUp_1855_2008.htm
So, perhaps the politicians’ disdain of the voters is understandable, since too many voters continue to repeatedly reward irresponsible most incumbent politicians in do-nothing Congress in the two-party duopoly with 93%-to-99% re-election rates ?
What are the politicians supposed to believe, when the voters repeatedly reward the incumbent politicians for being corrupt, incompetent, FOR-SALE, and irresponsible?
What are the politicians supposed to believe, when 90% of elections are won by the candidate that spends the most money?
What are the politicians supposed to believe, when they give Congress dismal approval ratings, but reward the incumbent politicians with 93%-to-99% re-election rates?
What are the politicians supposed to believe, when 40%-to-50% of voters don’t even bother to vote, and too many of those that do vote blindly pull the party-lever?
ohrealy wrote: And let’s move the capital from Washington DC, to Nauvoo, Illinois. The rest of DC should become a museum didstrict, and be part of Maryland.Let’s move D.C. to a cemetary, since Congress is where good ideas go to die.
Whoever the next president is, how effective will that president be if sabotaged and saddled with the same irresponsible, incompetent, corrupt Congress?
At any rate, the voters have the government that the voters elect, and deserve.
Posted by: d.a.n at April 24, 2008 10:02 AMAnd something about gerrymandering too, there should be a nonpartisan commission after each census to draw districts that don’t look like the Illinois 17th:
http://en.wikipedia.org/wiki/Illinois’s_17th_congressional_district
Posted by: ohrealy at April 24, 2008 10:14 AM“D.C. to a cemetary”, absolutely brilliant, Arlington is full. Veterans could be buried on the grounds at the White House and the Naval Observatory, and other choice spots.
I’m worried about that 3/4 of the states requirement. I don’t know if we can get rid of the electoral college if the 13 smallest states can block it. It might be pretty close.
Posted by: ohrealy at April 24, 2008 06:53 PMohrealy wrote: I don’t know if we can get rid of the electoral college if the 13 smallest states can block it. It might be pretty close.You’ve been doing your homework.
That’s right. The smallest states (in population) could block a ratification.
Posted by: d.a.n at April 24, 2008 08:09 PMThat’s right. The smallest states (in population) could block a ratification.
By design. Thank god.
Posted by: Rhinehold at April 24, 2008 11:01 PMRhinehold wrote: By design. Thank god.
Rhinehold, the Constitution should be obeyed.
But ohrealy is discussing amendments.
The election of year 2000, as did several elections before it, called the wisdom of the Electoral College system into question.
Whether the Electoral College is changed remains to be seen, and is the subject of one of ohrealy’s (and many others’) list of potential amendments.
The 3/4 requirement of all states to ratify an amendment is the current constitutional threshold.
Still, ohrealy’s point is valid.
Should the requirements be based on states, or populations?
If by states, then smaller states, being far less than 1/4 of the total population, could easily obfuscate, amplify, and/or blur that threshold further?
However, I personally do not think this is a huge issue with regard to amendments.
The bigger problem is that Congress has decided to blatantly violate Article V.
Already, 38 states have submitted a BALANCED BUDGET amendment, and Congress has refused to allow that amendment to be put to the states for ratification.
Just think, if a BALANCED BUDGET amendment has been passed a long time ago, the nation may not be now facing a $9.4 Trillion national debt, and $12.8 Trillion borrowed and spent from Social Security, leaving it pay-as-you-go, with a 77 million baby-boomer bubble approaching?
Thus, ohrealy makes a valid point about the electoral college and the 3/4 requirement versus a consensus by population.
The electoral college and other over-complexities only serve to make government more dysfunctional than it already is.
Also, as we have witnessed several times (in presidential elections), with the popular vote was beat-out by the electoral college.
Certain votes require different thresholds for plausible and defensible reasons. That is why it takes 2/3 of the states to require Congress to call an Article V Convention (something Congress is violating), and 3/4 of the states to ratify the amendment. The unfortuate part of that formula is that the smallest states could represent less than 1/4 of the total U.S. population.
At any rate, the U.S. Constitution should be obeyed until it is amended. Until amended, the Constitution requires 3/4 of the states to ratify an amendment.
ohrealy’s point is valid. An amendment to eliminate the eloectoral college is a reasonable request since we have already witnessed its obvious flaws in several presidential elections.
Here are some more ideas for amendments:
- (01) BALANCED BUDGET (38 states have already requested; Congress has violated Article V)
- (02) Eliminate automatic citizenship to new-born by illegal aliens in the U.S.
- (03) Campaign Finance Reform - reform campaign financing by preventing wealthy candidates from financing their campaigns (0.15% currently make 83% of all federal campaign donations), and by mandating partial public financing for House and Senate campaigns.
- (04) Term Limits for Congress
- (05) Term Limits for the Supreme Court - eliminate lifetime tenure for federal judges in favor of non-renewable 15-year terms for all federal judges.
- (06) Remove all party designations from ballots
- (07) War Powers - Limit some Presidential war-making powers and expand Congress’s oversight of war-making.
- (08) Remove abused presidential pardons that put politicians abuve the law.
- (09) Tax Reform
- (10) ONE-PURPOSE-PER-BILL amendment
- (11) Election Reform - prohibit Gerrymandering
- (12) Election Reform - provide receipt for vote that can be verified by a unique (but anonymous) number.
- (13) Election Reform - eliminate blocked access to ballots for 3rd party and independent candidates and voters.
- (14) Election Reform - switch to an approval voting system.
- (15) Make English the National Language
- (16) Require proof of Citizenship to vote in federal elections
- (17) Article V - settle once and for all Congress’ peremptory duty to call a convention.
- (18) Stare Decisis amendment - precedence does not trump the Constitution
- (19) Make Senate proportional to state populations.
- (20) Convene a new Constitutional Convention every 10 years using the state-based mechanism left to us by the Framers in the current Constitution.
- (21) Secession - Allow states the right to secede from the union - criteria to be determined
- (22) Define Individual versus Collective Rgihts and Precedence
- (23) Require more education of government, and the importance of transparency, accountability, and participation of citizens in public school.
- (24) NSA - create a secure operating system to reduce (or eliminate) vulnerability of the nation’s security, networks, and distributed computer systems.
Or has 2 centuries of Court review, misused Stare Decisis, and judicial activism rendered the Constitution a paper tiger?
As it stands now, it appears that many parts of the U.S. Constitution are being blatantly violated.
We also know, given time, some people will find a way to abuse almost anything (if not everything).
Thus, the Constitution may require updating from time to time, to address certain abuses (and there are many abuses; some of which are not Constitutional problems, but out-right lawlessness).
After all, it is not written in stone; it is supposed to be a living docuemnt.
Unfortunately, Congress has seized control of it by making Congress the sole decision maker (in violation of Article V) of when amendments can be offered for ratification.
We have to force the issue. We, as in the people. We have to tell the government to do one thing.
Right now we’re all offering things to do, and agreeing they all make sense, and wonder why the government isn’t listening to us.
They’re not listening to us because we, the people haven’t told them to do anything. Not one thing!
We can insist:
(01) BALANCED BUDGET (38 states have already requested; Congress has violated Article V)(02) Eliminate automatic citizenship to new-born by illegal aliens in the U.S.
(03) Campaign Finance Reform - reform campaign financing by preventing wealthy candidates from financing their campaigns (0.15% currently make 83% of all federal campaign donations), and by mandating partial public financing for House and Senate campaigns.
(04) Term Limits for Congress
(05) Term Limits for the Supreme Court - eliminate lifetime tenure for federal judges in favor of non-renewable 15-year terms for all federal judges.
(06) Remove all party designations from ballots
(07) War Powers - Limit some Presidential war-making powers and expand Congress’s oversight of war-making.
(08) Remove abused presidential pardons that put politicians abuve the law.
(09) Tax Reform
(10) ONE-PURPOSE-PER-BILL amendment
(11) Election Reform - prohibit Gerrymandering
(12) Election Reform - provide receipt for vote that can be verified by a unique (but anonymous) number.
(13) Election Reform - eliminate blocked access to ballots for 3rd party and independent candidates and voters.
(14) Election Reform - switch to an approval voting system.
(15) Make English the National Language
(16) Require proof of Citizenship to vote in federal elections
(17) Article V - settle once and for all Congress’ peremptory duty to call a convention.
(18) Stare Decisis amendment - precedence does not trump the Constitution
(19) Make Senate proportional to state populations.
(20) Convene a new Constitutional Convention every 10 years using the state-based mechanism left to us by the Framers in the current Constitution.
(21) Secession - Allow states the right to secede from the union - criteria to be determined
(22) Define Individual versus Collective Rgihts and Precedence
(23) Require more education of government, and the importance of transparency, accountability, and participation of citizens in public school.
(24) NSA - create a secure operating system to reduce (or eliminate) vulnerability of the nation’s security, networks, and distributed computer systems.
and all of those deserve merit, but which one did we specifically instruct the federal government to implement? How do we specifically instruct the federal government to begin the process?
Phx8 pointed out and provided the text of Article V in his post #251313.
…, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, …
and has also provided the answer.
We, the people must instruct our state legislatures to instruct the federal government to call a convention to propose amendments. period (that’s the reknowned period! fini!, kaput!)
Ad campaigns resembling newscasts imbedded in news shows would give this simple idea a root. Once the root takes hold local organizations will make it so.
It’s that simple. 50 state legislatures submitting legislation, using the exact same wording to the federal government to “call a convention to propose amendments.”
How hard is that? What happens if we do and they don’t listen? We deputize Gomer to go arrest our rep and senator!
phx8 wrote: Where, pray tell, does the Executive Branch come into play with an Article V convention? Why should any presidential candidate advocate this kind of convention, when they would have absolutely no say over who the delegates would be, or what issues would be addressed?None of them are El Presidente yet.
All 3 are in Congress.
And all 3 have ignored Article V, violating their sworn oath to protect and uphold the Constitution.
Posted by: d.a.n at April 25, 2008 06:53 PMThe 13 smallest states have a total population just over 13 million people, or a little more than the population of IL, but less than the populations of CA, NY, TX, or FL. So less than 5 per cent of the population can block any of the necessary changes. I’m not optimistic.
Boeing is in trouble again on the virtual border fence they are supposed to be building.
Posted by: ohrealy at April 25, 2008 08:04 PMThe 13 smallest states also have a total of 46 electoral votes, basically more than double the influence that their population warrants, equal to the electoral votes of TX plus Mass.
Posted by: ohrealy at April 25, 2008 08:15 PMJoel-
I would kindly request that you give me a break the size of the Mid Atlantic Ridge.
First, it’s obscure. Practically no-one would know about it. It’s not exactly something that’s ranking with Iraq and the economy as an issue.
Second, Barack Obama would probably have her guts for garters. He’s a constitutional law professor. He’d probably be happy to point out what I’ve pointed out: that nobody in American history has interpreted this article in this way. You can even look at Alexander Hamilton’s language in discussing this in the Federalist Papers, and find him talking in terms of Majorities and states working together.
To put it plainly your notion of this article is radically different from the intuitive meaning, and the constitution is meant to be interpreted according to that meaning, not construed in convoluted ways that suit the literal words but not the spirit.
If the states, by a large margin, call for a convention, then it should be brought. These were never meant to be called casually, nor called by the accident of long-term accumulation. This was meant to be a process engaged in altogether, the states uniting to rewrite the constitution that they wrote together and ratified together. This is a process of changing the founding charter of the UNITED states, and so should be changed only by the common will of a supermajority of those states.
Posted by: Stephen Daugherty at April 25, 2008 09:26 PMDude, that was lame, but I respect it. Welcome to the dark side, Stephen Daugherty.
Posted by: Weary Willie at April 25, 2008 09:31 PMDark side, nothing. I’m no strict constructionist, because the constitution was meant to be interpreted by regular citizens, not lawyers.
The trouble with literal interpretation is that it never guarantees consistent interpretation. It in fact frees the arguer from having to address issues of context, precedent, and other extra-textual clues to the meaning of the law, and makes their interpretation of the literal words the critical factor.
There are different forces at work with literal (or strict) constructions, socially speaking. What some are looking for is a break from the continuum of legal jurisprudence before, as practiced by judges they consider too liberal, cases they consider too hostile to their sensibilities, but nonetheless constitutes precedence for the interpretation of law.
Another angle on this is that of compulsion; they want to be able to say, with a scientific degree of certainty, “this is what the law means, and this is what you must do or allow to be done on that account”. This is meant by others in order to overrule matters of judgment, matters of political difference. If the constitution says it cannot be done, or should be done this way, then what can you dirty so-and-so’s do about it?
The closer an issue like this gets to real life, the less, though, strict construction can survive. Joel can argue that literal readings require that we believe a cumulative standard to be the law of the land, but years of the law in practice, the original defenses of these parts of the constitution, and the context of how the meaning is taken in the surrounding text support the other construction more robustly.
We try to reduce a lot of things beyond that because we have a love in this high-strung, high-octane society for short and sweet messages, for pseudo scientific certainty in things like Business, law, and education.
The only trouble is, these fields deal with human beings in all their complexity, so the unrealistic, oversimplified rules and processes people come up with in their quest to reduce complexity just ends up squeezing it out somewhere else. Joel hasn’t even begun to consider the unintended consequences of doing things that way, or that these consequences were not the desired results, politically speaking, that the framers wanted.
Posted by: Stephen Daugherty at April 26, 2008 11:49 AMStephen Daugherty wrote: To put it plainly your notion of this article is radically different from the intuitive meaning, and the constitution is meant to be interpreted according to that meaning, not construed in convoluted ways that suit the literal words but not the spirit.Nonsense.
First of all, it is not merely Joel’s notion.
If there are any strange notions, it is the notion that the “literal words” of the Constitution should somehow be ignored or re-interpreted, or that the “spirit” is different than the “literal” meaning.
Article V is not complicated:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
The Supreme Court has already conceded that there is no “same-subject” requirement (especially since more than 2/3 of the states submitted a request for BALANCED BUDGET amendment).
The Supreme Court has already conceded that there is no “contemporaneous” requirement (reinforced by the length of time for ratification of some amendments and no time-limit which are allowed, but none were specified for the ratification of some amendments).
The Supreme Court has simply refused to rule on the issue, using the same old Catch-22 it has been using for years: “no standing”
All in Congress explicitly and knowingly chose to violate Article V in Walker v. Members of Congress (represented by DOJ attorney Karen D. Utiger), and inappropriately advised by Judge Coughenour’s ruling in Walker v. United States.
And you obviously have an issue with the literal meaning of Article V, based on your own words: “suit the literal words”) ?
Interesting.
However, the “literal” and “intuitive” meanings are consistent with each other.
And the Supreme Court has already ruled and stated many times that there is “no room for construction” and re-interpretation of the constitution (as demonstrated below over and over).
Thus, your argument is extremely lame, and is what in fact relies on “construction” and “re-interpretation” to overcome the “literal meaning”.
Also, there is nothing in the Federalist papers or Federalist #85 that reveals any other meaning for Ariticle V other than the literal meaning.
Nothing in the Federalist papers implies that “whenever” or “amendments” meant “contemporaneous” or “same-subject”.
Besides, again, the Supreme Court has alread conceded that there are not “same-subject” or “contemporaneous” requirements.
The Supreme Court has already (many times) dealt with cases in interpreting the Constitution (including Article V) and its provisions:
- [#01] Marbury v. Madison, 5 U.S. 137 (1803): “It cannot be presumed that any clause in the constitution is intended to be without effect.”
- [#02] 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.”
- [#03] 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.”
- [#04] 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.”
- [#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] Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842): “[The] Court may not construe Constitution so as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them.”
- [#07] Dodge v. Woolsey, 59 U.S. 331 (1855): “The departments of the government are legislative, executive and judicial. They are coordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, right-fully done by either, is binding upon the others. The constitution is supreme over all of them, because the people who ratified it have made it so; consequently, any thing which may be done unauthorized by it is unlawful. … It is supreme over the people of the United States, aggregately and in their separate sovereignties, because they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them, by the congress of the United States, when two thirds of both houses shall propose them; or where the legislatures of two thirds of the several States shall call a convention for proposing amendments, which, in either case, be-come valid, to all intents and purposes, as a part of the constitution, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths of them, as one or the other mode of ratification may be proposed by congress.”
- [#08] 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.”
- [#09] Hawke v. Smith, 253 U.S. 221 (1920): “The framers of the Constitution realized that it might in the progress of time and the development of new conditions require changes, and they intended to provide an orderly manner in which these could be accomplished; to that end they adopted the fifth article. This article makes provision for the proposal of amendments either by two-thirds of both houses of Congress or on application of the Legislatures of two-thirds of the states; thus securing deliberation and consideration before any change can be proposed. … The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by the action of the Legislatures of three-fourths of the states, or conventions in a like number of states. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.”
- [#10] Dillon v. Gloss 256 U.S. 368 (1921), the Court reaffirmed its previous interpretations of Article V saying: “An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the senate. A further mode of proposal—as yet never invoked—is provided, which is, that on the application of two thirds of the states Congress shall call a convention for the purpose.”
- [#11] United States v. Sprague, 282 U.S. 716 (1931), 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 application of the legislatures of two-thirds of the States, must call a convention to propose them.”
- [#12] 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 [re-interpretation] and no excuse for interpolation.”
- [#13] Wright v. U.S., 302 U.S. 583 (1938): “In expounding the Constitution, every word must have its due force and appropriate meaning.”
- [#14] 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.”
- [#15] 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”.
- [#16] Ullmann v. U.S., 350 U.S. 422 (1956): “As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion.”
Stephen Daugherty, why are you so fearful of Article V?
Is it possibly because it goes against an anti-anything-not-Demcorat philosophy?
I guess you realize that all 50 states have had hundreds of constitutional conventions over the centuries:
books.google.com/books?hl=en&id=bHcCRNFLhvwC&dq=state+constitutional+conventions&printsec=frontcover&source=web&ots=dyAYYKZKBd&sig=GrwT5Dph4j_RqEeQRZB4cnvqolQ
Why do you find it so hard to accept that Congress is violating Article V, since other constitutional violations exist.
Why turn one’s self into a pretzel trying to defend the indefensible, and re-interpret what is declared above as being:
- “clear and distinct” ,
- “plain and obvious” ,
- “unambiguous”
- “calls for no resort to rules of construction”?
- and states there is “no room for construction”
Posted by: d.a.n at April 26, 2008 01:03 PM
Dan-
Let me let you in on a little secret: language isn’t a one to one code. Two people can read something literally and get two different impressions of what it means.
That’s why we have judges in the first place: to be disinterested third parties mediating disputes on matters of law.
To understand why literalism can be problematic, lets take the preceding paragraph and parse it literally:
That’s why we have judges in the first place: to be disinterested third parties mediating disputes on matters of law.
Why do I have judges in the first place? What did they win? Or did I put legislators in a second place, and bureacrats in a third and fourth? If they’re disinterested, how do we get them to pay attention to the case? If they’re third parties, does that mean they’re not Republicans or Democrats?
Seriously, you can see there the potential for abuse. We’re not talking about true literalism, then. But what are we talking about then? The phrase “first place” means to begin with. Disinterested means not having a stake in the dispute. Third party is essentially the same thing. Law tends to be like that, sometimes, repeating the same idea in different words. You know: cease and desist, last will and testament.
That’s regular language.
The question here is not whether those words can be taken to mean what you mean, it’s whether they should be. The real operative question is what the framers intended.
Alexander Hamilton, selling this to the American people talks about concurrence of the states, of the difficulty of states uniting around certain points. You can parse the language according to literal meaning any number of ways, but he seems to be talking as if the reader should understand the fractions of state legislatures required to be high, and difficult to reach on a piecemeal basis.
In other words, in a manner contrary to what you are suggesting. Such a standard is incredibly easy to meet. Concurrence isn’t necessary. They don’t even have to agree anymore.
Which poses a problem: it’s obvious from the parts of that Article surrounding it that it takes a substantial proportion of the Legislature and the states to otherwise propose and/or ratify these amendments. What makes more sense? That the Framers raised consistently high standards for amendment of the constitution, or that for some unknown reason they made one method ridiculously easy?
A bit of historical background on that count: the Federalists, you should know, abhorred the prospect of their precious expansion of federal powers being undermined by their rivals. That’s why the set the bar high, why they gave in on the Bill of Rights in part. They had no interest in somebody coming along and radically reworking the whole thing at the drop of a hat. They were quite happy with the constitution as it was, thank you very much.
But hey, that was just their opinion, right?
Problem what, the other side never interpreted things this way. They accepted the original interpretation as-is. So have two centuries worth of legal scholars, judges and Supreme Courts. Your justification, as it is, is strung together from any number of cases that have no direct bearing on the subject in question.
You can’t just make up constitutional interpretation on the spot, no matter how literal you make it. Literalism doesn’t make that intepretation law. Precendent, previous jurisprudence, original intentions for the law all factor in. You can cherrypick court cases to support an informal argument all you want, but that doesn’t make it law. The law is decided by the courts, and if I’m not mistaken, they haven’t rule in the favor of your fellow believers on this subject.
Why are you afraid of admitting that? That your interpretation isn’t law? Even if you think the courts are wrong, that the law as it is doesn’t rightly express the meaning of Article Five, isn’t admitting that distinction a crucial part of advocating for change.
I am not afraid to admit that I do have a healthy fear of the inappropriate use of the Convention Clause. Logically speaking, the Constitution can be amended to eliminate the high thresholds for Amendment. You could declare this country a monarchy. You could do more subtle damage in any number of other ways. Article V is our escape hatch, not merely from constitutional crises, but from democracy itself, should we choose. If that doesn’t scare you, then you don’t fully comprehend the stakes. Amendment of any kind is not to be entered into lightly.
The high thresholds for Amendment purposefully make the process difficult. People in my neck of the woods see their foundations head in all kinds of different directions, and it’s no fun. America benefits from a stable foundation of law. It also prevents what you might call constitutional quibbling, where we start making amendments to cover the pettiest little things.
We don’t need to be some Banana Republic, the founding charter changed at the drop of the hat. The constitution has authority because it was approved by the country as a whole, and changes to it are approved by the vast majority of Americans together. It’s not one person or faction pushing this down people’s throats.
Which is why, apart from it being the firmly upheld constitutional intepretation, that I favor the concurrent interepretation of that clause. When we do decide on convening a convention, it should be together, as a nation, not piecemeal, region by region, state by state. We’re the United States, and we should revise our fundamental law accordingly.
Posted by: Stephen Daugherty at April 26, 2008 09:27 PMhttp://www.foavc.org/file.php/1/Articles/Table_Summarizing_State_Applications.htm#SameSubject
Considering this list of applications, what qualifies the response from congress which I interpret to be:
(chirp, chirp, chirp)
That’s to mean “Silence”, interpreted to be “void of sound”. Not literally an absence of sound, but interpreted to portray a lack of sound. That’s what I interpret a lack of sound to sound like.
Is that a vague enough reason why Article V applications have been ignored by congress?
Or could it be interpreted as a challenge to their power and to ignore them is an effective way to undermine the will of the people?
and also…
… prevents what you might call constitutional quibbling, where we start making amendments to cover the pettiest little things.
Never mind the process for ratification of those petty little things. To avoid all things is an effective way to avoid all those petty little things.
Posted by: Weary Willie at April 27, 2008 10:13 AMStephen Daugherty wrote: d.a.n- Let me let you in on a little secret: language isn’t a one to one code.Nonsense.
The language in Article V is:
- “clear and distinct” ,
- “plain and obvious” ,
- “unambiguous”
- “calls for no resort to rules of construction”?
- and states there is “no room for construction”
Stephen Daugherty wrote: Two people can read something literally and get two different impressions of what it means.True. Some people, for nefarious reasons, choose to turn themselves into a pretzel trying to defend the indefensible.
Stephen Daugherty wrote: That’s why we have judges in the first place: to be disinterested third parties mediating disputes on matters of law.Nonsense.
As if nefarious motives do not exist.
Stephen Daugherty wrote: Seriously, you can see there the potential for abuse.The abuses are obvious, and your comments and position on Article V are a perfect example of it.
Stephen Daugherty wrote: The question here is not whether those words can be taken to mean what you mean, it’s whether they should be. The real operative question is what the framers intended.That’s right, and the “literal” and “intended” meaning are consistent.
If it were not true, you would not be so distressed and frustrated by it, you could make a convincing case, and you would not be turning into a pretzel trying to prove otherwise.
Stephen Daugherty wrote: Alexander Hamilton, selling this to the American people talks about concurrence of the states, of the difficulty of states uniting around certain points. You can parse the language according to literal meaning any number of ways, but he seems to be talking as if the reader should understand the fractions of state legislatures required to be high, and difficult to reach on a piecemeal basis.False. There is nothing in the Federalist papers that supports the idea of “contemporaneousness” or “same-subject” amendments, any assertions as such are merely more re-interpretation, reaching, and construction.
Stephen Daugherty wrote: They had no interest in somebody coming along and radically reworking the whole thing at the drop of a hat.Duh. That’s why it takes 2/3 to call a convention, and 3/4 to ratify.
And guess what. More than 2/3 of the states have already requested a BALANCED BUDGET amendment.
Stephen Daugherty wrote: You can’t just make up constitutional interpretation on the spot, no matter how literal you make it.Nonsense.
The “literal” and “intended” meanings are consistent, and the rules of construction are also clear and consistent.
Thus, your extremely weak arguments about “literalism” have no credibility.
Stephen Daugherty wrote: You can cherrypick court cases to support an informal argument all you want, but that doesn’t make it law. The law is decided by the courts, and if I’m not mistaken, they haven’t rule in the favor of your fellow believers on this subject.Don’t need to cherry-pick. Besides, Stare Decisis has its flaws too.
The “literal”, “intended”, “unambiguous”, and “clear and distinct” text of Article V is “plain and obvious”.
The problem is that Congress has chosen to violate Article V, by claiming an fictitious ambiguity that does not exist.
Stephen Daugherty wrote: Why are you afraid of admitting that? That your interpretation isn’t law?I’m not afraid of admitting anything. It is you that are turning into a pretzel rather than admit the “literal”, “intended”, “unambiguous”, “clear and distinct” text of Article V is “plain and obvious”, and the numerous Supreme Court cases and statements with regard to construction and interpretation, and several explicitly about Article V itself.
Stephen Daugherty wrote: Even if you think the courts are wrong, that the law as it is doesn’t rightly express the meaning of Article Five, isn’t admitting that distinction a crucial part of advocating for change.No. The violation of the Constitution should never be rationalized or trivialized.
Stephen Daugherty wrote: I am not afraid to admit that I do have a healthy fear of the inappropriate use of the Convention Clause.That’s obvious. That, and anti-anything-Democrat.
Stephen Daugherty wrote: Logically speaking, the Constitution can be amended to eliminate the high thresholds for Amendment.Not when Congress is violating Article V and refusing to allow states to propose amendments.
Stephen Daugherty wrote: You could declare this country a monarchy.Nonsense. No one person has that power.
Stephen Daugherty wrote: You could do more subtle damage in any number of other ways.Your fear is irrational, since it requires 3/4 of the states to ratify any amendments.
If you fear Article V, then you fear your own constitution.
Stephen Daugherty wrote: Article V is our escape hatch, not merely from constitutional crises, but from democracy itself, should we choose.Article V is the safety mechanism against what we are now witnessing today.
Article V is only one of many constitutional violations.
Stephen Daugherty wrote: If that doesn’t scare you, then you don’t fully comprehend the stakes. Amendment of any kind is not to be entered into lightly.I fully understand the stakes, and your fear is irrational. All 50 states have had hundreds of constitutional conventions over the centuries, and they did not self-destruct.
38 States have already requested a BALANCED BUDGET Amendment.
The inability of the states to reign in the abuse of power of the federal government is the danger you should be comtemplating.
Stephen Daugherty wrote: The high thresholds for Amendment purposefully make the process difficult.The threshold of 2/3 of the states to propose amendments (not already written, not “same subject”, and not “contemporaneous”) has already occurred and Congress has violated Article V by refusing to call a convention to “propose amendments”. Note the word “propose” from Article V. That does not mean only a single amendment, and it does not mean it has to be the “same subject”, nor “contemporaneous”.
Stephen Daugherty wrote: People in my neck of the woods see their foundations head in all kinds of different directions, and it’s no fun. America benefits from a stable foundation of law. It also prevents what you might call constitutional quibbling, where we start making amendments to cover the pettiest little things.Lawlessness is the problem. Congress is violating the Constitution, most Americans are totally unaware of it, and too many Americans simply don’t care.
Stephen Daugherty wrote: We don’t need to be some Banana Republic, the founding charter changed at the drop of the hat.That’s why there is a 2/3 requirement to propose amendments, and a 3/4 requirement to ratify amendments.
So your comment has no credibilty.
Stephen Daugherty wrote: The constitution has authority because it was approved by the country as a whole, and changes to it are approved by the vast majority of Americans together. It’s not one person or faction pushing this down people’s throats.That’s right, and your implying that one faction is trying to do that is nonsense.
Article V is very simple, the thresholds are very simple.
And turning into a pretzel rather than admit the “literal”, “intended”, “unambiguous”, “clear and distinct” text of Article V is “plain and obvious” is what is truly the act of “pushing this down people’s throats”, and condoning the violation of the U.S. Constitution.
Stephen Daugherty wrote: Which is why, apart from it being the firmly upheld constitutional intepretation, that I favor the concurrent interepretation of that clause.There is not current interpretation stated by the Supreme Court that supports Congress’ position that it is not required to call an Article V Convention.
In fact, if you had researched the court cases closely enough, you’d see that the court dismissed the entire issue in Walker v. Members of Congress (due to “no standing”).
By doing so, it admitted as fact that there is no “same-subject” requirement, there is no “contemporaneous” requirement.
The Supreme Court has not yet been forced to deal with it, but those days are numbered and I am very confident that eventually, the Supreme Court will be forced to rule that Congress must obey the “literal” meaning of Article V. Whether members of Congress will ever be held accountable for violating Article V is unlikely.
Stephen Daugherty wrote: When we do decide on convening a convention, it should be together, as a nation, not piecemeal, region by region, state by state. We’re the United States, and we should revise our fundamental law accordingly.Yes, according to Article V, of which the “literal”, “intended”, “unambiguous”, “clear and distinct” text of Article V is “plain and obvious”.
Also, all 50 states have already submitted 567 amendment applications to propose amendments, and Congress has ignored all of them.
How many does it take?
567 Million ?
567 Billion ?
567 Trillion ?
567 Quadrillion ?
567 Quintillion ?
567 Sextillion ?
567 Septillion ?
567 Centillion (i.e. 567 x 10^303) ?
How ridiculous does it have to get ?
What’s obvious and what you refuse to acknowledge is that Congress is corrupt and has a clear conflict of interest, because they know damn well some of the amendments that will be introduced will be things like:
- (01) BALANCED BUDGET (38 states have already requested; Congress has violated Article V)
- (02) Campaign Finance Reform - reform campaign financing by preventing wealthy candidates from financing their campaigns (0.15% currently make 83% of all federal campaign donations), and by mandating partial public financing for House and Senate campaigns.
- (03) Term Limits for Congress
- (04) Term Limits for the Supreme Court - eliminate lifetime tenure for federal judges in favor of non-renewable 15-year terms for all federal judges.
- (05) War Powers - Limit some Presidential war-making powers and expand Congress’s oversight of war-making.
- (06) Tax Reform
- (07) ONE-PURPOSE-PER-BILL amendment
- (08) Election Reform - prohibit Gerrymandering
- (09) Election Reform - provide receipt for vote that can be verified by a unique (but anonymous) number.
- (10) Election Reform - eliminate blocked access to ballots for 3rd party and independent candidates and voters.
- (11) Article V - settle once and for all Congress’ peremptory duty to call a convention when 2/3 states submit amendment requests.
- (12) Monetary System Reform - eliminate usury and inflation/deflation (for example: one-simple-idea.com/DebtAndMoney.htm#Solution).
Posted by: d.a.n at April 27, 2008 02:27 PM
What makes more sense? That the Framers raised consistently high standards for amendment of the constitution, or that for some unknown reason they made one method ridiculously easy? Posted by Stephen Daugherty at April 26, 2008 09:27 PM
They made the process identical except for the people charged with implementation. So far it’s been the congress dominating the process by refusing to acknowledge state applications.
The only time states have come near their constitutional right to have a convention called in in the direct election of senators. Congress was forced to act and they chose to control the process throughout.
These were never meant to be called casually, nor called by the accident of long-term accumulation. This was meant to be a process engaged in altogether, the states uniting to rewrite the constitution that they wrote together and ratified together. Posted by Stephen Daugherty at April 25, 2008 09:26 PM
Having said that, Stephen Daugherty, how would you explain the ratification of the twenty-seventh amendment? Ratified on your watch, Stephen Daugherty.
Posted by: Weary Willie at April 27, 2008 03:37 PM1-10 represent the people
11 the judiciary
14 corporations
25 president
27 congress
What’s not to notice here!?!
What’s not to notice here!?! Hmmmm … any amendments proposed by 2/3 and ratified by 3/4 of the states?Posted by: d.a.n at April 27, 2008 05:27 PM
How could I forget the 16th amendment!? The root of all evil. The fuel of the damned!
I must be carl, or impared. Perhaps I’m legally drunk.
I entertain you when you have nothing to offer.
Or, we freeze the assets of the federal government using the local judiciary.
It’s up to you.
Weary Willie-
If the states took your claim seriously, they would not take over 500 applications to come to the conclusion that they were being shortsheeted on convention calls. This would have been a court case long ago.
No state, not one, has brought a suit on such grounds, and nobody but a state or an official thereof has standing to bring the case.
Which means the standard interpretation of a concurrent set of calls being the requirement stands as the law of the land.
You guys, however strongly you feel about this, neither have the law nor the states themselves(the supposedly aggrieved party), on your side.
Is that a vague enough reason why Article V applications have been ignored by congress? Or could it be interpreted as a challenge to their power and to ignore them is an effective way to undermine the will of the people?
You’re under some mistaken impressions here.
First, it’s not the will of the people, at least, not directly. State Legislatures must call these conventions. This cannot be done by popular referendum. The language of the Article is clear on this. The proper term here would be “will of the states”.
Second, what will of the states?
With cumulative standards applied, the threshold becomes an abstract number, and any number of applications, whether one, or fifty can bring one about. Hell, if you only count up to the requisite thirty-four, then if the states all call for a convention at once, you can have two conventions for the price of one!
Convention calling becomes a game of a few states being able to drag all the rest into a convention they don’t want to hold, simply by virtue of being the states to put the count over the top.
I don’t know how you argue that this was the intention of the framers, who valued stability in government, not to mention consistency in standards.
The purpose of the standard is plain: to force anybody planning to put together a convention to get the backing of most of the states from the beginning. In fact, the linked Federalist Paper that I provided talks about just that aspect of it. The whole point is to make it to where broad common cause is required to get these changes emplaced within the constitution, the charter the states had agreed to in a similar manner.
Or put another way, the point is to make sure that it is the full will of the states that a convention will be held and that the amendments are ratified.
I don’t know how you establish what the will of the states is, contemporary to the period in question, if a standard has the calls coming in peacemeal over many years and sessions of these states legislatures.
Another real question here is, especially before modern times, why did the states never protest about this, make it into a huge public issue? If they felt aggrieved they had the standing to go and sue over it. What substantive reason exists for their not doing that?
Dan-
I think I demonstrated well enough that literal and intended meaning can be two different things. If you wish to elevate this to some kind of melodrama, with you riding to the rescue of the constitution, and me tying it to the rails, by all means, feel free to indulge in fantasy roleplaying. Meanwhile, find me the presumption of innocence in the constitution.
Wait, trick question. There is no such thing. It’s an implied right. So’s your right to travel. So’s your right to privacy.
Hell, your people were making use of an implied right by trying to avail yourselves of the court’s ability to declare a law or action unconstitutional, and end it.
You cited cases to support this where the judges cautioned against parsing the words of the constitution because it was written in plain language and not legalese; it had to be interpreted more broadly than just the parsed words alone would provide for to be interpreted well according to the thinking of the framers.
For example, if you take the Fourth Amendment absolutely literally, then what comes of electronic communication? Look it up: no reference there at all. Do we let the government snoop on our e-mail?
No, we consider that there’s a deeper meaning to the Amendment that they were getting at that’s applicable to the situation. Literalism or strictness in a construction, an interpretation, does not translate to correctness when it misses the principle behind the law. The framers were not looking to write a boilerplate document here, but rather a common language document that they were going to present to the people of this country for ratification.
Congress must obey what was meant in the constitution, and what was meant goes beyond the literal surface of the documents words. There were complex ideas at play with this document, and historical background for many of its aspects.
I think some people want the constitution to be as simple as reading the literal words, and interpreting them in a self-contained way. But what we want to be simple and what actually is simple are two different things, and for law to work effectively in society, it must be interpreted. Interpretation in law rests on more than just literal text, it deals with what the text refers to. When you try to restrict it to the text, everything becomes quibbling over the meaning of words, without the brakes of reality to clamp down on the rim of the wheels of justice and bring things to a sensible conclusion.
I’m no fan of fantastic leaps of jurisprudence which do not base themselves on the plain reading of the law. But I’m also experienced enough with the ambiguities, and inconsistencies of language to know better than to see literalism as a solution to that.
What’s really happening here is that people are trying to take the judgment out of judging. They’re trying to force judges to a certain kind of political position of theres, and they want to use the constitution or the law as a bludgeon to this end. Literal interpretation doesn’t make things simpler, it just squeezes the complications of a decision out somewhere else, like jelly coming out of PBJ sandwich and landing on your shirt.
Your intepretation complicates things incredibly, for the price of being one of a number of literal interpretations possible. The number required to call a convention at any given moment becomes uncertain, subject to any number of different possiblities.
With the concurrent standard, it becomes a simple equation: 34 states together can call a convention. Easy to enforce, and if enough states want it badly enough to make that threshold, it will be taken seriously. If they aren’t, then the States, who have appropriate standing, can take Congress to court over it.
Additionally, if the States can get together enough calls together to get a convention, they are much closer to bringing about real change than a convention triggered by only a few states.
Posted by: Stephen Daugherty at April 27, 2008 08:06 PMThe house represents the will of the people or population, the senate the interests of the particular states, the executive the interests of the union of states or United States. If we eliminate the electoral college, we will have two branches of government that represent the population and that would upset the checks and balances instilled into our system. The purpose for electors is to give each state a say in who is executive over the union. Changing this would allow The larger cities to control this branch. It would save presidential campaign finances however, since there would be no reason to advertise in the smaller states, as they would completely lose their say and become irrelevant.
Posted by: Kruser at April 27, 2008 10:35 PMPublic financing is a poor way to take money out of politics. The only reason lobbyists exist is because so much is at at stake for their interested party in these elections. The way to remove money would be to reduce the influence candidates would have in these areas.
For instance, Quit campaigning for confiscating guns and the NRA would gladly use their money elswhere. Balance the budget, get rid of numerous pork and intitlements and you remove another group of lobbyists.
The more control government assumes, the necessity for affected parties to be represented is increased. This should be the third party’s stand I would think. It used to be a Republican ideal but doesn’t appear to be anymore.
Public funding will give control of our elections to the bureaucrats who disperse it. Lobbyists represent groups of actual interested people.
d.a.n., do you have a link on the 567 amendments? All I could find was this:
The Texas Constitution originally was adopted in 1876. Since then, the Legislature has
proposed 567 amendments, of which Texas voters have approved 390…
ohrealy-
As a Texas resident, I can tell you directly about the trouble with constant revisionism of a constitution. It’s better in the long run to take a - dare I say it? - conservative approach to amendment of a constitution, and to interpret deeper than literal surfaces, because the alternative is a mind numbing and often bizarrely misinterpretative focus on details.
It wasn’t 567 amendments, but 567 convention calls, spread over this country’s +210 year constitutional history. Their basic argument is that the two-thirds number of the state legislatures should be counted over as long a time as they like (the advocates of this, not the states themselves), and that it’s Congress’s duty, with all those calls, and no convention held, to bring one about.
The case their organization brought, though, was thrown out of court, owing to a couple of things: First, the court says Congress has authority over these things that they can’t touch by judicial review. Second, the court says they aren’t even the right people to bring this case, that they lack for “standing”. Essentially, the premise here is that if you and I were involved in an accident, and some bystander sued me over what happened to you, the Bystander’s case would get thrown out, since only I or those I appointed as my representatives have that standing (at least that’s how I understand, my brother’s the lawyer in the family).
Essentially, though, it boils down to this: despite well over 210 years of constitutional history, not once has a state brought suit on being denied this, so the people supposedly being denied their constitutional capacity as states have not once in our history complained, despite their claim that this is the proper literal reading of the constitution.
In short, their claim has thin historical, legal, and logical support. Their intepretation is a product of the modern conflation of literal readings and proper readings. The truth is, language is more complex than that. Dan has replied with “Pretzel”, this being his shortest entry ever, supposedly referring to what he sees as twisted arguments on my part.
But the truth is, sometimes you need a little more complexity in your reading, in your communication, to efficiently transmit and recieve information.
I gave the example of the Fourth Amendment. If you take merely a literal reading, electronic communication and other modern advances in communication and what we would consider our space of privacy would not be covered, since the constitution never mentions them.
It might seem simpler and truer to believe that the literal word encompasses the full intent and effect of the constitutional amendment here, but the jelly squeezes out of the sandwich somwhere else, in that you’ve just given the government free license to eavesdrop on electronic communication. Did the framers intend for advances in technology to make the bill of rights obsolete? Obviously not.
The way out of this is to consider that what these articles and amendments were intended to do. The Fourth Amendment was intended to keep our communications, our persons, and our private property free from arbitrary search and seizure by the government, for example. Acknowledging that this was the principle behind it, we can then argue that the lack of an explicit listing of such technology does not invalidate protection from unwarranted search and seizure.
In the case of Article V, we have some clear facts that obviate the need for tortured, complicated, cherrypicking arguments to figure out what’s meant.
I’ve already given you the historical background: nobody else has ever interpreted the constitution that way. Not one court case has been brought with plaintiffs to the Supreme Court arguing this point. If you read what’s on the linked page in this comment, you’ll find Alexander Hamilton talking in ways that indicate that he’s thinking of states bringing these calls together, not apart and piecemeal.
It is this that the national rulers, whenever nine States concur, will have no option upon the subject
To concur is to go along with somebody else’s decision, somebody else’s opinion. It’s to agree on something at the same time, the root of the word in latin being to flow together.
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 highlighted the relevant word choices. Additionally, looking at the over all argument, he’s selling Article V on the basis of the notion that if an amendment is of great enough value to the state legislatures, that they will act together in accordance with the high priority most of them put on it. The states will act together to rollback encroachments of federal power.
Alexander Hamilton was essentially trying to sell the Constitution to the American people in these Federalist articles he wrote, along with others among the Federalists.
Here, another bit of context becomes important: The federalists weren’t big fans of easy revision of the Constitution. They only agreed to the Bill of Rights because it would work to guarantee the ratification of the constitution, and would prevent their foes, Thomas Jefferson and the anti-Federalists, from upsetting the applecart with another convention right after the first.
So the chances are very small that the Framers of the Constitution intended such an interpretation.
So, essentially, we have little chance that this was original intent, little if any record of this interpretation being practiced or espoused either in contemporary times or later on, even as the rivalries intensified into partisan politics, and the people bringing these cases now cannot even speak for the supposedly aggrieved parties who aren’t really acting all that aggrieved.
Pretzel? No. The argument is a straight line of historical fact and context, of a traditional interpretation which appears to be the original intention of the framers, which has not been challenged once by the interested parties in well over two centuries.
It is the advocates of this measure that have to bounce around from court case to court case, who have to create this logical pretzel of an argument, arguing legalistic literalism even as one of their cases argues that plain language is the standard by which constitutional law should be interpreted.
Well, in plain language, we don’t make ourselves plain through parsed boilerplate wordings, we describe things a little more generally, a little more broadly. That’s why the Fourth Amendment doesn’t exaustively list what is searchable and what is not. It relates the idea in a way the average person could understand it, and assumes the person can fill in the blanks on the rest of what that means.
That’s why the Federalist represents such a crucial bit of context for Article V. With the way he discusses it, we know that the Article was referring to the States acting together, in union, united, concurring, in general interests that affect all of them. the contemperaneous aspect of these words and these meanings helps us eliminate the notion that this was what was originally intended.
And understanding this, the standard bearers for a cumulative standard lose validity their most powerful assertions: that the constitution is to be read with parsing literalism, and that it was intended precisely the way they interpreted it. Neither is true, so their assertion is false.
Of course, sometimes we get carried away with our own passions about a subject, so we don’t always hit the brakes when somebody takes the wind out of our arguments. You can tell when that happens, or when it is apt to happen: they argue by melodrama, putting on the white hats and arguing that you’re wearing the black hat by not seeing things their way.
There’s nothing evil about buying either literalist doctrines, or this notion of a cumulatives standard for calling a convention.
They’re just wrong, that’s all.
Posted by: Stephen Daugherty at April 28, 2008 10:11 AMOhrealy wrote: d.a.n., do you have a link on the 567 amendments?Here is a summary of all 567 amendment requests. The originals are in the NARA in Washington D.C., and we are currently getting copies of those. Here’s a few samples obtained from NARA:
- 033 CONG. REC. 280 (1899).pdf
- 045 CONG. REC. 7115 (1910) [1911].pdf
- foavc.org/samples/079 CONG. REC. 10814 (1935).pdf
- foavc.org/samples/107 CONG. REC. 2759 (1961).pdf
567 applications by state legislatures since 1787.
554 applications by state legislatures since 1900.
432 applications by state legislatures since 1950.
384 applications by state legislatures since 1960.
221 applications by state legislatures since 1970.
071 applications by state legislatures since 1980.
044 applications by state legislatures since 1990.
Stephen Daugherty wrote: d.a.n- I think I demonstrated well enough that literal and intended meaning can be two different things.True, since there are always some people that want to be pretzel while trying to resort to re-interpretations and construction to attempt to explain away the “literal” meaning of Article V.
But such re-interpretations and contruction still do not explain away the:
- “clear and distinct” ,
- “plain and obvious” ,
- “unambiguous”
- which “calls for no resort to rules of construction”?
- and which requires “no room for construction”
Stephen Daugherty wrote: If you wish to elevate this to some kind of melodrama, with you riding to the rescue of the constitution, and me tying it to the rails, by all means, feel free to indulge in fantasy roleplaying. Meanwhile, find me the presumption of innocence in the constitution.Nonsense.
Clearly, what appears to frustrate you so much is the “literal” meaning of Article V, and that the “literal” and “intended” meanings are consistent (as does most likely anything that is even remotely anti-anything-Democrat).
What is truly delusional (even if entertaining) is observing:
- the rejection of the “literal” meaning of Article V and the possibility that the literal and intended meanings are consistent,
- turning into a pretzel trying to twist the meaning into some other meaning that can not possibly make any sense and defeats the entire purpose of Article V,
- rejecting the ridiculousness of Congress ignoring 567 amendments from all 50 states (the most popular being a BALANCED BUDGET amendment from over 2/3 of the states on 4 separate occassions)
- rejecting the Supreme Court’s established rules with regard to interpreting the Constitution (including Article V) and its provisions,
- ignoring 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.”
- ignoring 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.”
- ignoring 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.”
- ignoring Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842): “[The] Court may not construe Constitution so as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them.”
- ignoring Dodge v. Woolsey, 59 U.S. 331 (1855): “The departments of the government are legislative, executive and judicial. They are coordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, right-fully done by either, is binding upon the others. The constitution is supreme over all of them, because the people who ratified it have made it so; consequently, any thing which may be done unauthorized by it is unlawful. … It is supreme over the people of the United States, aggregately and in their separate sovereignties, because they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them, by the congress of the United States, when two thirds of both houses shall propose them; or where the legislatures of two thirds of the several States shall call a convention for proposing amendments, which, in either case, be-come valid, to all intents and purposes, as a part of the constitution, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths of them, as one or the other mode of ratification may be proposed by congress.”
- ignoring 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.” {so what mischief is suppressed by ignoring the literal meaning of Article V ?}
- ignoring Hawke v. Smith, 253 U.S. 221 (1920): “The framers of the Constitution realized that it might in the progress of time and the development of new conditions require changes, and they intended to provide an orderly manner in which these could be accomplished; to that end they adopted the fifth article. This article makes provision for the proposal of amendments either by two-thirds of both houses of Congress or on application of the Legislatures of two-thirds of the states; thus securing deliberation and consideration before any change can be proposed. … The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by the action of the Legislatures of three-fourths of the states, or conventions in a like number of states. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits no doubt in its interpretation. {Can you read Stephen Daughterty? That shoots your theory about the literal meaning not being relevant all to hell. Will you still reject it in favor of being a pretzel?} It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.”
- ignoring Dillon v. Gloss 256 U.S. 368 (1921), the Court reaffirmed its previous interpretations of Article V saying: “An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the senate. A further mode of proposal—as yet never invoked—is provided, which is, that on the application of two thirds of the states Congress shall call a convention for the purpose.”
- ignoring United States v. Sprague, 282 U.S. 716 (1931), 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 application of the legislatures of two-thirds of the States, must call a convention to propose them.” {Stephen Daugherty, that is yet more evidence that your theories about the literal meaning of Article V being irrelevant are nonsense.}
- ignoring 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 [i.e. re-interpretation] and no excuse for interpolation.” {Stephen Daugherty, is any of that sinking in yet? It really can’t be any clearer. Perhaps mere stubborness is the problem, in rejecting the possibility that the “literal” meaning is also the “intended” meaning. After all, why would anyone prefer to become a pretzel in trying to defend such a weak and lame position?}
- ignoring 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.” {So Stephen Daugherty, what is defeated by ignoring the “literal” meaning of Article V? Ignoring the literal meaning of Article V defeats the entire purpose of proposing amendments. Is any of this sinking in yet. No?} >
- ignoring the fact that many requests by states to propose amendments did not even provide a specific amendment. Many states are under the interpretation that 2/3 of the states only need to request a convention, and many states for over 200 years have done exactly that (567 times).
- ignoring the fact that Congress is corrupt and has an obvious conflict of interest.
- ignoring the fact, despite all the talk about high thresholds that it requires a 3/4 threshold of the states to ratify any amendment, but that still doesn’t discourage the blatant fear mongering about Article V.
Stephen Daugherty wrote: Hell, your people were making use of an implied right by trying to avail yourselves of the court’s ability to declare a law or action unconstitutional, and end it.“Your people” ?
Interesting choice of words, and an obvious attempt to portray people who care about the violations (one-simple-idea.com/ConstitutionalViolations.htm) of the Constitution as some sort of group to be looked down upon.
Still, such nonsense still does not explain away the “literal” and “intended” meaning of Article V, which is “plain and simple”, and “unambiguous”, and “clear and distinct” (as stated by the Supreme Court).
Stephen Daugherty wrote: There’s nothing evil about buying either literalist doctrines, or this notion of a cumulatives standard for calling a convention. They’re just wrong, that’s all.False.
Stephen, the court has already conceded that there is no “same-subject” or “contemporaneous” requirements. When the court dismissed Walker vs. Members of Congress (for “no standing”), it had a duty to identify any false statements in the amicus brief. By not doing so, the court accepts that there is no “same-subject” or “contemporaneous” requirement (foavc.org/file.php/1/Articles/FAQ.htm#Q8.4). The fact is, the Supreme Court has not yet been forced to make any ruling (ever) on whether Congress must obey the literal meaning of Article V. What is sad is that the Supreme Court must be forced to uphold and protect the Constitution.
Federal law requires that before the Court determines whether or not it will hear a case under certiorari, it must first establish the facts and law of the suit as required by the Constitution. The federal law governing the filing a certiorari certiorari to the Supreme Court requires the appellant (the party bringing the appeal) to assert what is correct and true as to fact and law in the suit. The opposition party (appellee) is required by federal law to declare formally and officially for the public record whether these assertions of law and fact are correct and true or not. This requirement in the law is described by the phrase misstatement of fact or law. If the appellee believes the stated fact and law are not true and correct, they are required to so declare this and state the reasons why these asserted facts and law are not correct. If the appellee waives their right to challenge the assertions by appellant of fact and law, the appellee has formally and officially acknowledged the assertions made by the appellant in the suit are correct and true as to fact and law.
In Walker v Members of Congress, the Solicitor General of the United States as authorized by federal law represented the members of Congress as attorney of record. In this dual official capacity the Solicitor General decided to waive any challenge that the assertions of fact and law made by appellant in Walker v. Members of Congress were misstatement of fact and law. By waiving this right, under federal law, the attorney of record formally and officially admitted these assertions were true and correct as to fact and law. That admission refuted the “patently frivolous” remarks of DOJ attorney Karen D. Utiger and created a final irony (foavc.org/file.php/1/Articles/The%20Final%20Irony.htm) in Walker v. Members of Congress.
On October 30, 2006 the Supreme Court denied certiorari but not before it was established and admitted for court and public record that all assertions made in the writ of certiorari were true and correct as to fact and law. Also, no advisory opinion nullifies Article V.
Stephen Daugherry wrote: My brother is a lawyer.And that does not mean you know what you are talking about. FOAVC has attorneys that know a lot more about than you do.
But there will no doubt be more entertaining imitations of a pretzel, while trying to re-interpret what the Supreme Court already said about Article V:
- “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.
Good luck! It’s really doing wonders for the credibility of your comments.
Illinois evidently had a bug up their butt about polygamy long after the Mormons left Nauvoo, to want a constitutional amendment. I think it would be helpful if there was a more detailed explanation on what happened with direct election of senators, and why the state legislators wanted to do that, and how the process worked.
Posted by: ohrealy at April 28, 2008 04:51 PMAmerica has many races
Reverend (Rev.) Jeremiah Wright likes to use American history only as it applies to Blacks. Many of his comments are not more that rumors without any substance. For example, during WWII, many Americans including White Americans were exposed to nuclear fallout. Many of the U.S. Army veterans eventually had many illnesses including cancer. Post WWII, approximately 4 million born Mexican Americans was deported to Mexico because they were born with brown skin. This group included those that served in uniform throughout the Pacific and Europe. Many of these U.S. born Mexican Americans returned to see their families deported. Furthermore, many Mexican illegal aliens that are serving in uniform (last count over 27,000), saw their family deported while they were serving in Iraq and Afghanistan. Many of these soldiers died in uniform and their families were not allowed to get the military burial, as was the custom for U.S. soldiers killed in action. Why hasn’t Rev. Wright included these types of facts?
I am sure that I can find similar examples for every ethnic group in America including the American Indians that were nearly removed from the earth when thousands after thousands were killed by White Americas. It is time for all Americans to stop blaming our past leaders for their mistakes. It is time to start living as “one nation, under God, with liberty and justice for all”.
True, since there are always some people that want to be pretzel while trying to resort to re-interpretations and construction to attempt to explain away the “literal” meaning of Article V.Reinterpretation? According to all the evidence, yours is the reinterpretation. The first interpretation seems to be my interpretation, which, might I add, doesn’t conflict with a plain reading of the Article. It’s the first assumption many people make reading it, the first assumption that Alexander Hamiltion gave to his readers selling the document, and the assumption the states have been making from the very beginning, from the looks of it.
I’m not rejecting the literal interpretation, I’m rejecting a literal interpretation.
The difference is plain if you consider how the Senate and the House could stage a vote one congresscritter at a time on proposing an amendment, and stretch it out for five years, and still be true to the literal meaning of the text. So would the regular kind of vote. Literal readings, depending how you parse, can bring forth any number of different interpretations. That’s why it’s a common lawyerly tactic to exploit the letter of the law, in spite of its spirit.
You think it clarifies things, but it doesn’t, because words can be and often are interpreted according to pre-existing biases; something always gets added. That’s why all the literalism in religious fundamentalism hasn’t created unity in interpretation among those people. People all take their own literal interpretation, and add what they think should be read into things.
It is not natural and obvious to read things so literally. Typically, those interpreting the law are asked to factor in legal traditions, context and original intent, and the precedent of the cases.
You talk about the natural and obvious sense, but how do we determine that? Context. In the text of the document, we have three other standards which by common practice are taken to be concurrent measures, votes and ratifications. It may sometimes take a couple centuries for a Amendment to be ratified, but I believe that most others have done so within just a few years of their passage. Context also extends to what the framers said about what the clause meant. In this case, and you have yet to contradict me substantively on this, Alexander Hamilton seems to indicate he’s in my camp.
Ask most people what that section means, and they’d agree with my position without many problems. My position isn’t the result of tortured logic, but a soundly supported interpretation of the constitution which the wording does not deny, and which context indicates was intended.
All the case you cite, you borrow from not to prove the main point, but in fact to borrow from them the sort of language you believe you need to repudiate a certain style of interpretation that you attribute to me. You’re cherrypicking references to plain and obvious, unambiguous, simple, and all that, but nothing you cite supports the legal interpretation you offer of Article V. That, you surmise, is self evident once you read the constitution the right way.
Except you’re not.
First, it is not clear what period of time is recommended, because none is. A vote in a millisecond, if we are going by text alone, is as valid as a vote that takes a millenium.
What does Ogden v. Saunders really say?
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.”
Seeing as how there is no explicit period of time given or forbidden, there is inherent ambiguity. Both standards satisfy it, regardless of your view of my standard’s expedience.
But more to the point, the intention of the framers can and has been inquired into!
Moving on to Prigg v. Commonwealth of Pennsylvania, you have the same problem: the obvious end of Article V, given Alexander Hamilton’s explanation of it, is that the provision requires the states to come together, to concur, to be operative. It is intended to require common action on the part of the states, and to have votes be spread out indefinitely defeats the intended unity. So my interpretation once again wins, because it no only satisfies what is written, but what is demonstrably intended.
That loses you Jarrolt v. Moberly as well. One part of the mischief that Hamilton states that the high threshold was made to prevent was the possiblity of parochial, local interests overwhelming the general interests of the states together. Your literal meaning undermines that, my plain meaning upholds that. The constitution wasn’t meant to be revised like a script being written by insecure screenwriter. The United States wrote and ratified the constitution, and so United shall they call the convention to change that charter.
As for Hawke v. Smith, I can read, and I have read that case, and you leave out the facts that this particular section was aimed at. This is one site’s description of the case:
In the Hawke v Smith (1920), for example, the Court upheld Ohio’s ratification of the Eighteenth Amendment over objections that the Ohio Constitution provided for a referendum on the issue by voters that might have overridden the Ohio legislature’s ratification of the amendment. The Court concluded that the federal law set for in Article V providing specifically for ratification by state legislatures preempted conflicting state procedures for ratification.
That was what that last sentence was about. They weren’t making a general statement, but were describing what Article V said about the Ohio legislature’s attempt to use the popular vote to undo their ratification. They’re saying there was only one set of solutions prescribed, and the constitution was very specific about it. But this wasn’t even about the convention clause, which was not at all applicable to the matter at hand.
This is the danger in your approach: You’re ignoring important context for these words, ignoring the subject matter that alters their plain meaning.
As for your people? I was referring to FOAVC. They are your people aren’t they? You’re getting all your arguments and cases from them, aren’t you? You agree with them, don’t you? Your people, therefore.
As for my brother the Lawyer? I’ve learned some things from him, but I’m nowhere near as much the expert. However, I’ve learned enough to know that you’re getting it wrong. You’re citing cases for the sake of a few words supporting literal interpretations in your mind, but you’re failing to see that these cases don’t have direct relevance. Your first case, in fact, is about Supreme court jurisdiction on treaty cases.
What you lack for is precedent or historical evidence backing your interpretation directly. You rely on a failed case, but insist that it is the law; not merely what should be law, but what is law. I’m sorry, you don’t have that privilege.
Posted by: Stephen Daugherty at April 28, 2008 08:32 PMStephen Daugherty wrote: I’m not rejecting the literal interpretation, I’m rejecting a literal interpretation.Wonderful.
So, it all depends on what the meaning of “is” is?
Is that the best you can do?
Stephen Daugherty wrote: As for my brother the Lawyer? I’ve learned some things from him, but I’m nowhere near as much the expert. However, I’ve learned enough to know that you’re getting it wrong.Nonsense. I have worked for a law firm, have worked in litigation support, and have worked on gathering evidence. Also, FOAVC has attorneys with a lifetime of experience, and they know heaps more about it than you. But that isn’t even required, since the “plain and obvious” text of Article V is
- “clear and distinct” ,
- “plain and obvious” ,
- “unambiguous”
- “calls for no resort to rules of construction”?
- and requires “no room for construction”
Stephen Daugherty wrote: You’re citing cases for the sake of a few words supporting literal interpretations in your mind, but you’re failing to see that these cases don’t have direct relevance.False.
Several cases explicity reference Article V itself. For example: