Balkinization: The Trump Amendment

Comments:

Article V does not grant states the power to withdraw ratifications of amendments (or applications for a convention of the states).

In any case, the slippery slope horror stories offered in opposition to the ERA back in the 1970s (the military forced to place women in combat arms, unisex toilets, etc) are currently imposed by executive or bureaucratic fiat.

Here is a blast from the past, a Firing Line debate over the ERA.

Oh, to have Bill Buckley back again...

# posted by

Bart DePalma : 11:27 AM

Neither does it deny them that power. Ergo, per the 10th amendment... All such open questions are supposed to be resolved in favor of the states. The best way to approach it is that you need the necessary number of states to all be in favor of ratification at the same time.

It's similar to the way the Constitution doesn't say Senators can withdraw ratification of treaties. But if you held two votes on ratifying a treaty, and each individually fell short with a different set of Senators, you'd never say that it had been ratified thanks to enough Senators voting "yes" in aggregate.

I don't think this really has anything to do with Trump. It's a combination of the "Meto" hysteria, and the left starting to get a triumphalist buzz going on, so now they're going to grab what they can, however dubious the case for the legitimacy of what they do.

# posted by

Brett : 12:20 PM

Brett:

Expressly granting one power or remedy by definition excludes the grant of others - expressio unius est exclusio alterius.

The Senate similary does not have the power to withdraw ratification of a treaty. The Constitution grants POTUS general executive and CiC powers as head of state which grant him or her the power to withdraw from treaties. Congress may enact legislation pursuant to an Article I power, which may effectively modify or withdraw from a treaty, or decline to enact legislation which would put into effect non-self executing treaties.

# posted by

Bart DePalma : 12:35 PM

Neither does it deny them that power. Ergo, per the 10th amendment... All such open questions are supposed to be resolved in favor of the states.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Are "the people" also rans here? It seems to me that an amendment is of specific interest here in that respect and how "We the People" in this respect falls vis-a-vis states can in respect to the amendment process go various ways.

It simply isn't clear, especially if the Necessary and Proper Clause (which gives Congress special power to fill in blanks) leads additional complications in application, what is "prohibited by it" here. The bare text as compared to reasoning it out, helped by long precedent, doesn't answer all the questions. The Tenth Amendment by its lonesome doesn't solve the problem there, nor does its text alone set up this "states get the benefit of the doubt" rule.

Brett, going after his usual dragons, oversteps his mark again on the last point. The sentiment there for the Trump loyalist, to me, should be that "anti-Trump hysteria" is involved here. It is "part" of it. Did the "Me Too" movement just come from nowhere in that respect, for instance?

# posted by

Joe : 12:36 PM

It's similar to the way the Constitution doesn't say Senators can withdraw ratification of treaties. But if you held two votes on ratifying a treaty, and each individually fell short with a different set of Senators, you'd never say that it had been ratified thanks to enough Senators voting "yes" in aggregate.

The two situations are different, however, in that the Senate is one body & no final successful consent by that one body passed. OTOH, here, the state agreed. The state's agreement very well might be deemed final. It depends on how we determine the rules should be followed. Thus, if three parties to a contract need to agree and two agree, it might or might not be the case that one can say "backsies" before the third does.

The rules since the Reconstruction (including involving Northern states), involving multiple amendments into the 20th Century, have been understood that states cannot take back ratification. But, I'd be interested in how the rules were understood in other cases. For instance, before the necessary vote to ratify the Constitution, could a state have took back their vote? In international law, how do the rules work when multiple nations are necessarily to finalize a treaty?

I advisedly think a good approach here is to have Congress, with each state represented, fill in the blanks here. I think "ratified by the legislatures" very well can mean more than one thing. It is purposely vague probably.

# posted by

Joe : 12:48 PM

"Are "the people" also rans here?"

Those powers neither delegated to the federal government, nor denied the states, are reserved to the states, or to the people respectively. Which of those it is, is a matter for state constitutions and laws to settle, not Congress.

I do not take the process behind the Reconstruction amendments as a legitimate guide to the process. They were taking all sorts of constitutional liberties at that time; Some of the state legislatures actually held ratification votes with Union soldiers present in the legislative chamber just to make sure they voted "right".

"The Tenth Amendment by its lonesome doesn't solve the problem there, nor does its text alone set up this "states get the benefit of the doubt" rule."

The Tenth amendment just exactly sets up a "states get the benefit of the doubt" rule.

# posted by

Brett : 2:12 PM

Brett: Neither does it deny them that power. Ergo, per the 10th amendment... All such open questions are supposed to be resolved in favor of the states.

10A: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

There is no open question.

The Constitution's Article V sets forth the only means to amend the Consitution. Thus, any other means are "prohibited by it to the States."

# posted by

Bart DePalma : 3:05 PM

I just got back from the Thursday mostly liberals (some progressives) lunch and you all started w/o me. While I may jump in later on the issues, this from Joe's 12:48 PM comment:

"Thus, if three parties to a contract need to agree and two agree, it might or might not be the case that one can say 'backsies' before the third does."

brought to mind the Stormy Daniels lawsuit in CA and one of Stormy's theories in that case. That's of course "off topic" on this post.

# posted by

Shag from Brookline : 3:25 PM

"There is no open question."

The open question here is whether states are entitled to rescind their ratification votes prior to the amendment accumulating enough votes to be ratified. Or by extension, place time limits on them such that they're automatically rescinded after a certain date.

This is not another means of amendment, just a question of whether a pro-ratification vote, once accomplished, is forever. And I see no good reason why states should not be permitted to do this. Only bad reasons.

The only reason this question even comes up, is that the ERA failed, and some people don't want to accept that.

# posted by

Brett : 3:36 PM

"Those powers neither delegated to the federal government, nor denied the states, are reserved to the states, or to the people respectively."

That's not quite right. The actual text says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." You have the word "respectively" in the wrong place.

The original wording did not have the final clause. That was added as part of a debate begun by Representative Tucker on 21 Aug 1789:

"Mr. Tucker proposed to amend the proposition, by prefixing to it "all powers being derived from the people." He thought this a better place to make this assertion than the introductory clause of the Constitution, where a similar sentiment was proposed by the committee. ..."

After some debate, "Mr. Carroll proposed to add to the end of the proposition, "or to the people;" this was agreed to."

In short, the last clause expresses the basic republican principle that sovereignty rests in the people. It's up to them, not state laws or constitutions.

# posted by

Mark Field : 3:40 PM

Which of those it is, is a matter for state constitutions and laws to settle, not Congress.

"The people" is listed separately but again Brett focuses on the "state" part. How this will be "settled" is somewhat unclear. It was not argued "Congress" will "settle" it though it might have some role per the Guarantee Clause etc. My concern holds.

I do not take the process behind the Reconstruction amendments as a legitimate guide to the process. They were taking all sorts of constitutional liberties at that time; Some of the state legislatures actually held ratification votes with Union soldiers present in the legislative chamber just to make sure they voted "right".

Yes, 'they' taking constitutional liberties is a core reason the amendments were deemed necessary. Soldiers were present largely to deal with just that along with the lack of legitimate organized state police forces after the states lost their attempt to secede. Rowdy elections resulted in police presence lots of places over history. Here, repeatedly, elections resulted in blacks being attacked. For voting "wrong" or at all.

Anyway, the repeals occurred in the North as well and involved amendments into the 20th Century. Attempts to change the process regarding allowing repeals expressly failed.

And, we can play "they don't count" rules to the original Bill of Rights too. Constitutional liberties were denied there too. The legitimacy with a much smaller suffrage base is more questionable. Pressure to pass, fearing the Constitution itself was at risk if they did not and NC/RI not agreeing to join the union (not just the merits of the amendments), was present.

The Tenth amendment just exactly sets up a "states get the benefit of the doubt" rule.

Again, "the people" are skipped over.

Second, what the text specifically says is that certain powers are retained. How to determine in close cases what those powers are is unclear. As with Art. V., possible implications are made into easy calls.

# posted by

Joe : 4:02 PM

I have read the author's Bill of Rights book & his argument is that "bill of rights" at the time assumed it would be at the head of the document [the practical difference in this case is unclear to me as compared to Madison's idea to mix the text within the document itself] and that it would have certain general principles of government.

The Bill of Rights might have less flowery language than state bills of rights in respect to the second, but it does as Mark Field's comment suggests, some aspect of that.

# posted by

Joe : 4:08 PM

"In short, the last clause expresses the basic republican principle that sovereignty rests in the people. It's up to them, not state laws or constitutions."

State laws and constitutions, short of revolt, being the mechanism by which the people express their decisions on these matters.

"Second, what the text specifically says is that certain powers are retained. How to determine in close cases what those powers are is unclear. "

No "certain" involved. The text expressly states which powers are retained: All powers that weren't delegated to the federal government or forbidden the states.

This is a rule of construction amendment, leaving everything to the states/people the Constitution didn't otherwise settle.

# posted by

Brett : 4:10 PM

"State laws and constitutions, short of revolt, being the mechanism by which the people express their decisions on these matters."

I think you misunderstand the import of "sovereignty". As sovereigns, the People are by definition not limited to state laws and constitutions, though of course they can make use of those if they so choose. Nor are we talking about the People of individual states; rather, it's the People of the nation.

# posted by

Mark Field : 4:16 PM

I'm not at all sure that the question raised in the OP is a legal one. It strikes me as entirely political. If Congress and the Secretary of State accept the ratifications as valid, I don't think any other body (e.g., the Court) has jurisdiction to negative that. Similarly, if they refuse to accept them as valid, I don't think the Court (say) can compel them to.

It would, however, be interesting if the Court were to refuse to enforce an amendment accepted as valid by the political branches on the ground that it wasn't properly ratified, nor to enforce one rejected by the other branches. I'm a fairly strong proponent of judicial review, but I'd hope no Court would take either extreme position.

# posted by

Mark Field : 4:32 PM

Brett: This is not another means of amendment, just a question of whether a pro-ratification vote, once accomplished, is forever. And I see no good reason why states should not be permitted to do this.

There is no reason to assume a power which Article V nowhere grants the states.

Until otherwise repealed by another amendment, an amendment is forever, thus is makes perfect sense that a state vote to ratify the amendment (or a state vote applying for a convention of states) is forever.

Allowing states to reverse ratification votes makes an already too difficult process even more so.

# posted by

Bart DePalma : 7:08 PM

I think it's not an extreme position at all. The alternative is that Congress could just declare, this evening, that the ERA, or indeed any amendment it has originated, was ratified, and nobody could dispute them. Or enough states could ratify an amendment, (Perhaps one originated from a constitutional convention, and thus not much liked by Congress?) and Congress could refuse to admit it ratified.

A sort of 'enrolled bill' doctrine for Constitutional amendments.

The enrolled bill doctrine is offensive enough when it comes to legislation, but the leaders of Congress are at least members of Congress, and in principle capable of being ousted by the other members. The Constitution places the exclusive power to ratify in state hands, and states are entitled to refuse to ratify amendments, and under some circumstances ratify amendment Congress doesn't want.

You'd transfer that power to Congress, the body the Constitution explicitly DIDN'T give it to.

# posted by

Brett : 7:16 PM

"Until otherwise repealed by another amendment, an amendment is forever, thus is makes perfect sense that a state vote to ratify the amendment (or a state vote applying for a convention of states) is forever."

It makes sense that it would be forever once enough states had decided to ratify. You'd have an amendment ratified even if half the states first voted to ratify, and then reconsidered, and were screaming in horror, "No, no!"

Ratifying amendments isn't the difficult step here, historically. Most amendments sent to the states have been ratified.

Originating amendments is the difficult step. You'd transfer more power to the branch that's the cause of the problem in the first place.

# posted by

Brett : 7:22 PM

No "certain" involved. The text expressly states which powers are retained: All powers that weren't delegated to the federal government or forbidden the states.

This is a rule of construction amendment, leaving everything to the states/people the Constitution didn't otherwise settle.

Yes, "didn't otherwise settle."

But, how do we specifically determine "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." is not specifically explained.

There is no rule that in close cases the arguments go the states' way. What the Constitution did not settle raises a lot of debate & "the states" alone don't get the benefit of the doubt here.

# posted by

Joe : 7:54 PM

The argument that Congress might cheat the count strikes me as proving too much. Somebody has to certify that states have ratified an amendment. Whoever has that job might cheat. But since somebody has to have the job no matter what, and since we therefore can't rule out every single person and entity on the ground of "possible cheater", then we just have to do the best we can to assign the job.

# posted by

Mark Field : 10:34 PM

This comment has been removed by the author.

# posted by

Joe : 12:13 AM

Coleman v. Miller is generally understood to make this a political question for Congress though the two opinions can be parsed to possibly leave something open.

GM has discussed this matter in a series of Concurring Opinions posts as has at least two people on this thread. My stance, and I will perhaps end here, is that the exact rules are somewhat unclear. Nonetheless, too much time has passed for it to be a good idea for the original deadline to be extended. I think the ERA is unnecessary at this point & perhaps problematic, since I like the idea of one Equal Protection Clause. Others disagree.

It is a bit remarkable, but as the now cliche saying goes nothing is these days (now it's a Libby pardon? smh), that we might be one state away at this late date. It is surely not merely an academic enterprise and who knows what Congress would do at this point.

===

In his book, "The Heart of the Constitution," GM references Walter Bagehot. He has an important role in an early episode of The Crown.

# posted by

Joe : 12:16 AM

"The argument that Congress might cheat the count strikes me as proving too much."

Congress, or rather, its leadership, certainly cheats when it comes to the enrolled bill doctrine. They've been caught at it more than once, declaring "passed" things that the members hadn't voted on. It's just that the courts jam their fingers in their ears and go, "Neener, neener!"

But that's exactly what Gerard is discussing doing, having Congress cheat. In that lawyerly way lawyers generally discuss cheating, where if you're in a position to cheat, it isn't really cheating. Where because the umpire CAN throw the game, the umpire is entitled to throw the game.

That lawyerly way, where you pretend that the formal rules are everything, and only lawyers' opinions matter. Where if the system allows you to get away with doing something, it's ok to do it.

I'm trying to bring that literally insane 'realism' back the Earth.

The opinions of critically positioned lawyers may be all that matters according to the formal rules, but the formal rules only matter because of the opinions of people who mostly aren't lawyers.

Even the crooked umpire needs to pretend they're honestly calling the balls, or the players may walk off the field, the crowds in the bleachers flood the field and trample the umpire.

Declare "ratified" an amendment on the basis of ratification votes that expired or were rescinded, and the lawyers may be happy, but enough people will be furious and refuse to accept the outcome to render the future of the very system dubious.

# posted by

Brett : 5:49 AM

Brett, at 5:49 AM, presumably from the "throne" in the manner of Trump tweets, warns in his closing paragraph:

" ... but enough people will be furious and refuse to accept the outcome to render the future of the very system dubious."

perhaps prepared to play the Pied Piper, guiding the lemmings. But SPAM has made it clear that he won't be one of Brett's lemmings. (Methinks that SPAM is abandoning the Trump ship of state just as he abandoned the Bush/Cheney ship of state with its Great Recession. Brett's on board Trump's Titanic to the bottom.)

# posted by

Shag from Brookline : 8:31 AM

Ah, I see Brett really meant John Roberts. Well, I agree that we can't let him decide.

# posted by

Mark Field : 8:43 AM

Shag:

You live in a truly bizarre alternative world.

# posted by

Bart DePalma : 8:46 AM

BD: "Until otherwise repealed by another amendment, an amendment is forever, thus is makes perfect sense that a state vote to ratify the amendment (or a state vote applying for a convention of states) is forever."

Brett: It makes sense that it would be forever once enough states had decided to ratify.

Precisely where does Article V provide for this proposed time limit or grant either Congress or the States the power to impose time limits?

You'd have an amendment ratified even if half the states first voted to ratify, and then reconsidered, and were screaming in horror, "No, no!"

So? This could also be the case under your proposal after enough states had decided to ratify.

The thing about the rule of law is you apply the law as written, even if you sometimes disagree with the policy results.

# posted by

Bart DePalma : 8:54 AM

"So? This could also be the case under your proposal after enough states had decided to ratify."

Not at all, because once enough states have ratified, the process is done, it's actually part of the Constitution, and can only be removed by another amendment. Article V states that amendments become part of the Constitution when ratified by enough states. Period.

Prior to that moment, it's just a proposed amendment.

Once the amendment has been submitted to the states, Congress's part is done. It may be the case that Congress doesn't want to admit that, but Article V gives Congress no role after that moment.

# posted by

Brett : 9:17 AM

Nevada Ratified the Equal Rights Amendment March 22.2017. There is much work nationwide underway on renewing efforts to ratified including the Commonweath of Virginia. Our Website is an online library- Women-Matter.org . There is also an important documentary released last year Equal Means Equal by Kamala Lopez. I can be reached at eileendavis@women-matter.org

# posted by

www.EileenDavis.blogspot.com The Davis Report - The Voice of Central Virginia and the Capital City. : 10:42 AM

In thinking further about Brett's position, I don't think it's coherent. As I understand it, he believes that (a) the states all have to ratify at or about the same time; and (b) Congress can't be trusted to certify any results.

The difficulty comes from the fact that Art. V doesn't create any requirement of "at or about the same time". To the extent there is such a requirement, that comes from Congress (in the particular case of the ERA, from the transmission of the amendment to the states). If Congress shouldn't have any power over the ratification process -- that being up to the states in Brett's view -- then the individual states should get to decide how long the process can take. If NV wants to ratify now (heh), then it should be able to. Lots of states have ratified amendments years after they were adopted and nobody has gainsaid them.

There are still going to be problems. Withdrawing a ratification is an obvious one. Somebody has to decide whether that's ok, or whether the same standard applies to amendments as to the Constitution itself: no backsies.

I suppose the answer could be that the SCOTUS gets to decide, but that's hardly consistent with the claim that the states have full power here. Nor is it consistent with Brett's previously expressed view of the judicial power.

But as I said, somebody has to decide.

# posted by

Mark Field : 11:12 AM

"as to the Constitution itself: no backsies"

Was it understood (fwiw) in 1787 that once a state ratified the Constitution that it could not take it back before the necessary states ratified the Constitution?

# posted by

Joe : 11:24 AM

I don't recall that issue ever coming up.

There was talk of "conditional ratification", meaning dependent on the passage of specified amendments. The Federalists argued that ratification had to be yes or no and that conditions should be treated as nugatory. The fact that no state tried "conditional ratification" suggests that the idea lacked support.

# posted by

Mark Field : 12:00 PM

"As I understand it, he believes that (a) the states all have to ratify at or about the same time; and (b) Congress can't be trusted to certify any results."

I didn't say anything about "at or about the same time".

My position is that, right up to the moment that 3/5ths of the states are simultaneously on record as ratifying an amendment, the states are free to approve or rescind their approvals, including automatically per the terms of their ratification votes. 3/5ths must be in favor of ratification at the same time.

How long it may take this to happen is irrelevant, unless the amendment was passed out of Congress to begin with having a time limit.

Once a state has rescinded its ratification vote, or that vote has expired on its own terms, it no longer counts towards the 3/5ths.

Once 3/5ths of the states have ratified at the same time, the amendment is now part of the Constitution, and any further action by the states or the federal government, barring another amendment, is irrelevant.

The contrary view would allow a temporary legislative majority to permanently commit a state to supporting ratification, even if that majority were immediately ousted at the next election, to be replaced by the voters with people opposed to the amendment. Or visa versa.

We must, up until the moment an amendment has become part of the Constitution, allow for the possibility of minds being changed.

As for Congress not being trusted to certify results, read Article V: It doesn't include any certification process! Not a thing in there about Congress doing squat after the amendment is originated.

So it scarcely matters if Congress can be trusted to do a job they weren't given in the first place.

# posted by

Brett : 12:22 PM

Joe: "In international law, how do the rules work when multiple nations are necessarily to finalize a treaty?"

The rules were declared in the 1969 Vienna Convention on the Law of Treaties, ratified by pretty much everyone and considered by most as declaratory of customary international law, so it's authoritative.

There are two steps. First the text has to be adopted, by mutual consent or a 2/3 majority at an international conference (Article 9). That adoption defines irreversibly what the treaty is. It can be modified only by the procedures it lays down internally, or those laid down in the Vienna Convention (Articles 39-41).

Second, the states concerned have to bind themselves to its provisions, by the procedures laid down in the treaty or those laid down in the Vienna Convention (Articles 14-17). Similarly, a state can withdraw only in accordance with the treaty provisions or those of the Vienna Convention (Article 42). So Trump can only withdraw from the Paris Agreement (ratified for the USA by Obama) in accordance with the agreement's lengthy timetable. He can't just say "Sorry, changed my mind."

The Vienna Convention goes into a lot of detail on the invalidity of treaties through error, coercion, corruption, impossibility of performance, conflict with peremptory norms of international law, fundamental change of circumstances, etc. These are narrow cop-outs, though they may gain new relevance in the post-Westphalian era of Trump, Bolton, and Kim.

Worth noting that a multilateral treaty normally stays in force even though the number of contracting Parties falls below that needed for entry into force (Article 55).

# posted by

James Wimberley : 12:32 PM

Let's try a concrete example.

Republicans are, at the moment, close to having enough state legislatures to call an Article V convention. So, let's say after the 2020 election they do call that convention. And it originates an amendment reducing the Senate to ceremonial status, (So as to moot the Article V clause prohibiting abolishing equal representation in it.) transferring all its powers to the House, and rejiggering the formula for apportionment in a way which hugely favors 'red' states.

Oh, and overturning Reynolds v. Sims while they're at it.

37 states then rush to ratify the amendment, but they can't quite get to 38.

Then a few months later, in the 2022 election, the voters massively retaliate, and the GOP loses control of one legislative chamber after another. State after state rescinds it's ratification vote.

But, wait! Michigan had not ratified, so there was no retaliation. And after the election several members of the Democratic caucus die in a bus accident on the way to a promotional bowling tournament.

The legislature is quickly called into session before special elections can replace them, and ratifies the amendment!

Wow, a massively unpopular amendment is now part of the Constitution, (Per a clause, takes immediate effect!) with only one state currently favoring it!

Way to go, champs. That's what your procedure would allow for.

# posted by

Brett : 12:38 PM

"So Trump can only withdraw from the Paris Agreement (ratified for the USA by Obama) in accordance with the agreement's lengthy timetable."

The US never ratified the Vienna convention, because it would, unconstitutionally, transfer the Senate's power to ratify treaties to the President, and the Senate wouldn't agree to do that. The executive branch takes the position that it is customary international law, and so binding anyway.

The Senate takes the position that screw that, we didn't agree to it. I think the Senate has the better case.

# posted by

Brett : 12:41 PM

"My position is that, right up to the moment that 3/5ths of the states are simultaneously on record as ratifying an amendment, the states are free to approve or rescind their approvals, including automatically per the terms of their ratification votes. 3/5ths must be in favor of ratification at the same time."

Ok, I see what you meant: there must be a moment in time when 3/4 of the states have ratified even if they did so at different times.

I'm not sure that helps your argument, though. Both this requirement and the rest of your comment read into Art. V rules which are not in the text and not, so far as I know, in any historical practice, whether in 1788 or today. Somebody has to judge whether those "rules" are in fact rules, and if so, whether they've been followed.

# posted by

Mark Field : 12:51 PM

Way to go, champs. That's what your procedure would allow for.

Yes, constitutional rules sometimes result in policy results that are unfortunate.

For instance, a very popular amendment might be blocked by a small portion of the population under the current process. It even might be the case that even in thinly populated states the people support it but gerrymandered legislatures or whatever [such as delays in the legislative process] result in rejection.

A Brett friendly amendment might be blocked as well by a "backsie" late in the game, even though it is very popular and possibly even popular in the very state (the possible 38th) that stopped the completion of the ratification. In fact, the backsie might be a result of a bribe & Congress might not even be able to -- in that case at least -- not count it.

Mark Field's political question approach, btw, seems to allow Congress to accept the "backsies" under Brett's hypo. Like a flipped coin settling an impeachment, that might be unjust, but there would (under current law) not be a remedy.

# posted by

Joe : 1:05 PM

Thanks, James Wimberley.

# posted by

Joe : 1:09 PM

"Somebody has to judge whether those "rules" are in fact rules, and if so, whether they've been followed."

Lots of people can. Curiously, I'm being told that the only people who can't are judges.

My argument is that we have a perfectly on topic amendment, specifying that ambiguities as to who gets a power are to be resolved in favor of the states or people, NOT Congress.

Article V doesn't state that the states can't rescind their votes, and doesn't assign the power to do that to Congress, so it becomes one of the reserved powers.

# posted by

Brett : 1:11 PM

But of course the 10th A absolutely does NOT specify anything about ambiguities. In fact, it creates one: is this particular issue one which can/should be resolved by the states or by the People?

There's also the problem that questions of, say, retracting a ratification are ones which can't actually be resolved by the "the states respectively" (whatever that means).

# posted by

Mark Field : 1:34 PM

It further occurs to me that it's rather odd to claim that the 10A controls the interpretation of Art. V, when the 10A wasn't part of the original Constitution and couldn't have affected the adoption of any of the first 10 amendments, including itself.

# posted by

Mark Field : 1:51 PM

Brett: Let's try a concrete example.

The two amendment processes - Congress or a convention of states - take years, multiple election cycles and supermajority support of our elected representatives to complete.

It is nearly impossible to enact an amendment which does not enjoy broad popular support.

To execute a substantial revision of the constitutional order, the United States nearly became a failed state before the states agreed to call a convention and then ratifying its proposal.

We do not need to make the process any more difficult by allowing the states or Congress to impose additional conditions which are not set out in Article V.

# posted by

Bart DePalma : 2:00 PM

"It further occurs to me that it's rather odd to claim that the 10A controls the interpretation of Art. V, when the 10A wasn't part of the original Constitution and couldn't have affected the adoption of any of the first 10 amendments, including itself."

Haven't you got that backwards? Amendments change what came before. Of course the 10th amendment can have bearing on what the Constitution adopted prior means. It's the amendments adopted afterwards it could lack relevance to.

"We do not need to make the process any more difficult by allowing the states or Congress to impose additional conditions which are not set out in Article V."

I'm suggesting we not let Congress creatively waive the requirement for 3/5ths of the States favoring an amendment by counting as favoring states that have already rescinded their approval.

# posted by

Brett : 2:25 PM

Here's an article to consider:

"RESCINDING RATIFICATION OF PROPOSED CONSTITUTIONALAMENDMENTS-A QUESTION FOR THE COURT" by Grover Rees III, at:

https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=4266&context=lalrev

This is a 1999 article in Louisiana Law Review. The Conclusion presents various scenarios involving rescissions.

# posted by

Shag from Brookline : 2:33 PM

Thanks, Shag. Nicely relevant.

# posted by

Brett : 2:52 PM

Shag:

Rees: "Although the Constitution does not explicitly provide for rescission of resolutions ratifying amendments,' it is reasonable to suggest that the controversy is artificial, in light of the general rule that a legislative body may rescind any of its own actions, at least until they have taken effect." citing L. CUSHING, ELEMENTS OF THE LAW AND PRACTICE OF LEGISLATIVE ASSEMBLIES IN THE UNITED STATES OF AMERICA § 1260 (Irish University Press reprint 1971) (1st ed. Boston 1856).

Rees is misrepresenting his source, which notes in England a motion to reconsider a vote is considered "irregular "and used in cases of fraud.

# posted by

Bart DePalma : 3:25 PM

"Haven't you got that backwards? Amendments change what came before. Of course the 10th amendment can have bearing on what the Constitution adopted prior means. It's the amendments adopted afterwards it could lack relevance to."

Of course. I was referring to the irony that the "protect the states" language wasn't in effect, yet the untrustworthy Congress passed and submitted the 10A, which was then ratified against their nefarious scheme.

# posted by

Mark Field : 9:10 PM

Are you perhaps unaware of the history behind that? It was the federalists' contention that a Bill of Rights was unnecessary, because the Constitution gave the federal government no powers with which it could violate those rights in the first place. That a Bill of Rights would be redundant.

An argument they lost. They only got the Constitution ratified by promising to follow it up with that Bill of Rights. It would have swiftly fallen apart if they hadn't kept that promise.

And, yes, a Bill of Rights is premised on the idea that government is untrustworthy. That doesn't mean government will always immediately do the wrong thing.

# posted by

Brett : 7:27 AM

Is Brett suggesting that the 10th A amended Article V?

# posted by

Shag from Brookline : 8:40 AM

Brett's, from his 7:27 AM comment:

"An argument they lost. They only got the Constitution ratified by promising to follow it up with that Bill of Rights. It would have swiftly fallen apart if they hadn't kept that promise."

suggests he has a time machine corroborating what he claims would have happened "if" ,,,. Surely Brett is not relying on originalism or textualism for his claim.

# posted by

Shag from Brookline : 8:49 AM

Brett, you're missing the basic story of the BoR. Yes it's true that the anti-federalists wanted amendments. But when Madison introduced the BoR, the anti's condemned them. They wanted what we would call structural changes that gave more power to the states. For an example pertinent to this discussion, one proposed change to the 10A was to add the word "expressly" before the word "delegated". That might have changed the whole meaning of Art. I, Sec. 8. That proposal, like the rest of the anti's proposals, was voted down.

There's a simple reason why the amendments favored by the anti's were voted down: the Federalists controlled Congress. They were the ones who decided which amendments to send to the states, and they also controlled many (I think most, but I don't recall offhand and it's not worth looking up to make this point) of the state legislatures. Ratification also required Federalist approval. In consequence, the amendments passed did not reflect the views of the anti's so much as the views of the Federalists.

# posted by

Mark Field : 9:52 AM