Wednesday, February 27, 2013
A Second Constitutional Convention
Gerard N. Magliocca
In news that will warm Sandy's heart, the Indiana Legislature is poised to pass a resolution petitioning for a national constitutional convention. Here is the current language:
I don't know if this will warm the heart of Prof. Levinson, but it surely would warm the hearts of the long-dead anti-federalists who demanded a second convention.
Of course, Madison and Washington are rolling over in their graves.
Somehow, I do not think that returning the checks and balances to Congress and limiting its taxing powers would provide Sandy with a chill up his leg.
Indiana wants to partially return to the Constitution of Madison and Washington, not to constitution of the CSA.
The Indiana resolution does not call for a "second constitutional convention." It calls for a limited convention for proposing amendments under Article V. The Philadelphia convention, depending on how you want to look at it, was either the first and only convention called pursuant to the Articles of Confederation or the last of a series of interstate conventions called by the states as independent sovereigns. Whatever it was, it was not an Article V convention.
Think it's sweet that Indiana thinks that a convention would have to be limited to the topics it wants to discuss.
A runaway convention may be difficult to avoid when efforts are made to limit what the convention may address. I have in piles of downloaded articles that I'll have to dig through for a couple of fairly recent ones on this topic. The convention process is of course time consuming, through many, many choruses of "Back Home Again in Indiana." (I like Louis' rendition._
I'm not sure why anyone has to be too concerned about a runaway convention, given that the result still has to be ratified by the states.
I would say this resolution is of little consequence, because it is sufficiently specific in it's details as to give Congress an excuse to not combine it with other states' calls for a convention for purposes of determining if enough states have requested one. You'll need all the states making the call to use similar language, unless Congress wants a convention, and they don't.
"the convention for proposing amendments called for in this resolution shall be understood to be strictly confined to consideration of amendments concerning the limitation of the commerce and taxing powers of Congress"
That is the most hilarious thing I've read in quite a while.
Query: Is the Federalist Society of today the anti-federalist version of yesteryear? Feh, what's in a name?
The key here is "That the General Assembly further declares that such a step is necessary to restore the operation of the constitutional system of the United States according to the intent of those who created it"
This should be read to mean restore the system to what we imagine was the intent of the creators which happens to be exactly what we believe in at this or any particular moment on any particular issue.
Or something like that.
rapier's thrust is pointed. Apparently Indiana legislators are relying upon original intent originalism that has been long abandoned by the "new originalism", the "new new originalism," etc.
It should be noted that in the ratification process following the 1787 Convention, anti-federalists had proposed that a supermajority vote be required with respect to matters of Congress' commerce powers. Alas, these anti-federalists were unconvincing and the Constitution was ratified without such a supermajority requirement.
Indiana legislators fawn on the Framers and ignore the Ratifiers, relying on their powers to read the Framers' minds.
Touche, rapier. En garde, anti-federalists (now known as the Federalist Society).
Rather than engage in the regular pointless name-calling, lets see if we can identify points that we agree and disagree on.
In Federalist No. 85, Hamilton cited Article V as “one of those rare instances in which a political truth can be brought to the test of mathematical demonstration.” That “political truth” is that whenever the requisite number of states are “united in the desire of a particular amendment, that amendment must infallibly take place.” This is so because once two-thirds of the states apply for a convention, Congress obliged to call it: “Nothing in this particular is left to the discretion of that body.”
Based on this “mathematical demonstration,” Hamilton argued, we can be secure that the states will be able to counter federal overreach: “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.”
Mark, Shag, et al, may not believe that there have been any “encroachments” of the national authority or at least any encroachments that warrant the use of Article V by the state legislatures. Or, perhaps more likely, they do not believe that the encroachments they see will be the ones addressed by the convention sought by Indiana. That’s fine, we are not going to resolve that issue on a blog thread.
We can also disagree whether the current “operation of the constitutional system of the United States” is in accordance with ”the intent of those who created it.” This is not the sort of proposition capable of mathematical demonstration. (I am not sure why Shag thinks Indiana’s statement relies solely on the intent of the drafters, as opposed to the ratifiers, but that is neither here nor there). I happen to think Indiana’s view is rather better grounded than Mark’s claim that Madison and Washington are turning over in their graves, but this is also a matter of opinion that we aren’t going to resolve. Likewise as to whether it is desirable to restore “an appropriate balance between the federal government and the states” etc.
We can agree, however, that the questions Indiana raises are precisely those that Article V assigns to the judgment of the state legislatures- not to Congress, the Supreme Court, or anyone else. If the Indiana legislature believes that there have been encroachments by the federal government, it has the right, if not the duty, to use the Article V convention process to erect barriers against that encroachment. Which is precisely what it is trying to do.
Just to complete the reasoning of mls, the silence of other states in response to the IN legislature's call necessarily means, by Hamilton's mathematical logic, that its concerns do not affect "the general liberty or security of the people".
mls' self-described, by implication, maturity and moderation is merely his means of engaging in " ... the regular pointless name-calling ... " defensively. The Indiana legislators referenced "the intent of those would created" the Constitution, presumably the Framers. There is no reference to the Ratifiers that are explicit - or implicit. I just started reading a new article by Randy Barnett on the "New Originalism" in which he puts "original intent originalism" in its place. (Paul Brest did this in spades a score or more years ago.)
And I note that mls doesn't challenge my comment on anti-federalists' seeking a supermajority vote when Congress addresses the commerce clause, which effort was unsuccessful.
I don't presume what "we" can agree upon, except to agree to disagree.
Indiana legislators can say what they please. Other states may join Indiana. Some states might come up with different or additional proposals. Meantime, can "we" agree that Louis Armstrong's rendition of "Back Home Agains in Indiana" is the best? "We" may be listening to this song for many, many years before the proposed convention, whether limited or runaway.
It really doesn't matter in the least what Indiana's theory of constitutional interpretation is. All they need to believe is that the contemporary national government is exerting too much power and needs to be reined in. One could believe that the Constitution instantiates Hzmilton's basic hatred of state autonomy, as a matter of original intent and original expected meaning (dubious, to be sure), and that we the people in 2013 need to correct that mistake.
The point is that the one and only sensible question with regard to the task of a constitutional convention is to ask what kind of constitution would best serve us in the 21st century. What most lawyers would have to say is probably irrelevant, since we are trained only to interpret the present constitution.
Professor Levinson is certainly correct that the state legislatures have the authority under Article V to seek constitutional amendments regardless of whether or not they are designed to restore the original meaning of the Constitution. It may be argued that the purpose for which a legislature seeks an Article V convention (again, not a “constitutional convention”) is relevant to the constitutional propriety of its action, but not to its constitutional authority or power. Of course, there is one limit on the power to seek amendments- states may not be deprived of equal suffrage in the Senate without their consent (sorry).
I also agree that lawyers have no monopoly on wisdom relating to constitutional design, though I would hope that legal training and expertise would have some contribution to make.
I note that Professor Rappaport has a post on this at The Originalism Blog as well.
"I also agree that lawyers have no monopoly on wisdom relating to constitutional design, though I would hope that legal training and expertise would have some contribution to make."
Drafting a set of amendments or even a new document to reform the Constitution AND the various court rewrites will require precision and use of the correct terms - especially if the drafters are attempting to re-leash the government in the face of progressive courts.
Constitutional scholarship is mandatory.
"Drafting a set of amendments or even a new document to reform the Constitution AND the various court rewrites will require precision and use of the correct terms - especially if the drafters are attempting to re-leash the government in the face of progressive courts.
Constitutional scholarship is mandatory."
Taken in the order of the comments.
1. "Madison and Washington are rolling over in their graves.
Hardly. Madison wrote Article V and Washington is on record as supporting it. Madison indeed made it quite clear in Congress regarding the power of Congress and an Article V Convention. There is no debate, no vote and no committee. Hence, it is hardly likely either has or had the slightest fear regarding a convention.
2. The fact is the states can limit what a convention will propose, not what it will discuss. Indeed it is possible for the states to do this in real time during the convention if they so choose. However given a convention, like Congress, must pass a proposed amendment by a two thirds vote (one vote per state delegation meaning 34 votes out of 50) that barrier alone will prevent passage of all but the most hardy amendment proposals. Even so the amendment must still pass a higher standard in ratification 38 out of 50 states. Between the two barriers, ignoring the usual political opposition on top of all else, history has shown the Constitution quite safe from what might be termed brazen amendment proposals.
3. Regarding the resolution itself. Public record shows if passed and sent to Congress this will be the 749th application from the states, with a total of 49 states applying. It should not surprise too many that Indiana is considering a convention. That states leads all other states in number of applications submitted. You can read the applications at www.foavc.org.
4. "the silence of other states in response to the IN legislature's call necessarily means, by Hamilton's mathematical logic, that its concerns do not affect "the general liberty or security of the people." Obviously the writer of this comment, Mis, is unaware of the public record of #3. Given that 49 states have asked for a convention call, one can hardly say the states have been "silent." Given that 36 states have applied for a balanced budget amendment plus numerous other proposals all limiting the federal government in commerce and other related powers, the observation is obviously totally incorrect.
5. It should be noted the reason a convention has not been called is because Congress refuses to obey the Constitution and call it.
6. It should also be noted the courts, the Founders, the states and even Congress itself has stated the basis of a convention call is a numeric count of applying states, i.e., 34 states. What most fail to realize is the content of the applications, i.e., what Indiana in this instance asks for is constitutionally aimed at the convention. After all it is the convention they are asking to propose an amendment(s) not Congress. Therefore the convention will decide whether or not to be so limited. Given the fact 34 different amendment issues have already been submitted by the states to be discussed by a convention however and there is no constitutional basis whatsoever by which a convention can ignore any state application, the chances of a convention being limited to a single issue are null because the states have long since required that convention by their applications to address a multitude of constitutional issues. Of course not all will pass. In fact, most will not. Indeed the convention will be lucky to propose a single amendment. But when a convention is open for discussion it can create a wondrous result. When it is limited beforehand, the outcome already known, why would anyone waste the effort.
"Hence, it is hardly likely either has or had the slightest fear regarding a convention."
That wasn't the point of my comment.
"However given a convention, like Congress, must pass a proposed amendment by a two thirds vote (one vote per state delegation meaning 34 votes out of 50) that barrier alone will prevent passage of all but the most hardy amendment proposals."
You're making this up.
"Obviously the writer of this comment, Mis, is unaware of the public record of #3. Given that 49 states have asked for a convention call, one can hardly say the states have been "silent.""
I was the one who made that comment, not mls. You also missed my point. The failure to respond to IN's specific points is what indicates their disagreement. General requests for a convention, or requests on other grounds, are irrelevant to that.
"Therefore the convention will decide whether or not to be so limited."
"5. It should be noted the reason a convention has not been called is because Congress refuses to obey the Constitution and call it. "
I can't really agree with that, much as I am of the opinion that they WILL so refuse, if faced with the required number of states calling for a convention. I think there's a fair argument that, just as Congress can't pass a law without the requite number of votes all being for the same language, if the states really want a convention, they'd better agree on some kind of language to all vote upon.
Instead you've got a few states calling for a convention to do X, a few more calling for a convention to do Y, a few more a convention to do Z, but NOT 37 states calling for the same convention. I think it would be perfectly reasonable for Congress to have responded to this by calling a convention, unrestricted. But they've been given plenty of wiggle room to not call one.
What we need is some commonly agreed upon language to remove the wiggle room.
If only the Framers had removed "the wiggle room" back then we could spend more time on interpreting the "harlem shake."
In answer to Mr. Field.
I am not "making it up" as you phrase it when speaking of the two thirds vote of the convention. The courts have ruled repeatedly regarding this issue. What you ignore or have not considered is the fact the convention is part of the Constitution. Therefore it is controlled by that Constitution. One of the parts of the Constitution is the 14th Amendment which prescribes equal protection under the law. The courts have repeatedly ruled on this issue of equal protection.
In sum the courts have said that groups, individuals and so forth that form a legal class must be treated equally. The legal class must be able to be clearly defined. The Constitution clearly defines who may propose amendments to the Constitution--members of Congress and convention delegates (which is why the states cannot propose amendments. This is not a theory the founders deliberately made this decision and I'll provide a reference for you to read of original public record at the end of this message)
Thus delegates and members of Congress form a clearly defined legal class. Their powers are exactly equal in this matter, that is proposal of amendments. As the Constitution mandates they must be treated equally, that is what citizens they represent must be treated equally, it follows any limitations placed upon one part of the legal class must equally apply to all the legal class. The Constitution demands that one portion of the legal class must have two thirds agreement before it may propose amendments. Hence, all the class must have two thirds agreement. Basic constitutional law.
As to the comments from Brett.
I'm sorry but the Congress has refused to call the convention. The proof is at the FOAVC website. The FAQ section discusses two lawsuits, one taken to the Supreme Court in which all members of Congress joined against it as it called for them to call a convention. At the Supreme Court the government, acting as official legal representative for all members of Congress, as required by federal law, acknowledged that a convention call was based on a simple numeric count of applying states with no terms or conditions.
As to proof. I'm sorry I forgot to include the link I promised above but here is it now.
First an article regarding same subject convention. Go to the last 16 pages or so and begin reading about the Rogers article. The references show the Founders clearly did not intend anything but a numeric count of states and indeed eliminated language that did allow the states to propose amendments. This was done by deliberate vote.
This is the reference:
As to the reference proving my statement on the 14th Amendment I offer two references:
http://www.foavc.org/reference/file2.pdf Please note this is a very long piece but for references if you are truly interested in the truth, worth the read and:
Thus the public record removes the so-called "wiggle" room. It has never existed and the courts have so expressed on several occasions. The only "wiggle" room is in the minds of the public who haven't bothered to research the facts before drawing conclusions and have been too lazy to question the JBS and others such Eagle Forum thus letting them make up their mind for them rather than thinking for themselves.
The process is fully laid out in law which requires it be followed. The only debate that should be happening is not about the convention but why Congress has the right to ignore the Constitution. Those opposing a convention for whatever contrivance support the government vetoing the Constitution whether they intend this or not. The Constitution says Congress shall call, not may call. A decision by those opposing has to be made: do you obey the Constitution and solve the problem, or put your trust in the JBS and others who have lied to you and turn your back on the Constitution?
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Don't know if zombie Madison is rolling in his grave or what exactly one framer who was outvoted in his state delegation thinks on this matter. We have to deal with the matter as we currently understand it.
Brett has repeatedly assumed Congress will reject a request from the number of states necessary. This never happening yet, it is all supposition. The pre-Constitution Congress accepted the call & don't know -- if the thing comes to pass -- why the current one will so clearly not.
The proposal is not likely one that will get the needed super-majority. Neither party shows a real consistent concern for reducing the CC and as to subject matter, the tax provision either.
the convention for proposing amendments called for in this resolution shall be understood to be strictly confined to consideration of amendments concerning the limitation of the commerce and taxing powers of Congress
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