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Sandy, I planned to comment but noted at the very end of the post an incomplete sentence. So I reserve comment for the time being, except to comment on President Trump's right to self-pardon and all the other things his "Herculean" lawyers claim he can do as President: President Trump is channeling Louis XIV of France with this variation: "LE RAT, C'EST MOI."
 

The separate post on this question w/o comments provides this interesting tidbit:

Even the Attorneys General of the states that attempted to rescind their ERA ratifications expressly opined that the rescissions would be legal nullities. Rescissions nevertheless cast doubt on whether the will of the people support the Amendment.

I think counting such rescissions are questionable per precedent but adds to my bottom line that I oppose Congress accepting a putative ratification. They still provide useful context at this late date to Congress. On the bottom line, I'm basically in agreement with Brett (no one will be surprised we disagree with various details) here.

As to the ability of states to rescind, in theory, I think a case can be made for it. But, long precedent holds against it, including (according to one past comment) in respect to international law. Mark Field offered a limited expression of why this might be so in a past comment thread. I again wonder if it IS allowed, why the possibility of it never seemed to come up during the ratification of the Constitution.

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I am reposting this comment since the author by email nicely sent me the name of the article linked: Brenda Feigen Fasteau; Marc Feigen Fasteau, May a State Legislature Rescind Its Ratification of a Pending Constitutional Amendment, 1 Harv. Women's L.J. 27, 52 (1978). And provided a pdf. Much appreciated.
 

We went over a lot of this in the previous thread and I don't want to duplicate my comments here, so I'll limit this comment to the ending of the OP.

While I understand the frustration with the vague text of the Constitution, I'm not convinced that a new Convention would or even could provide a solution. We now have 230 years of accumulated interpretation of the Constitution. There's no possible way to account for all of that in a new text. Far from taking on "the prolixity of a legal code" (in Marshall's phrase), it would take on the prolixity of the CFR or, worse yet, the CA Constitution. Even the simple omissions -- who presides over the VP's impeachment? can the President fire appointees confirmed by the Senate? can the President pardon himself? -- would expand the text considerably, and that's before we ever get to phrases like "due process".


I actually think this is a good thing. Having a Constitution that sets out general guidelines means that implementing those guidelines is a continuing process. We can make mistakes, and we can learn from them. More significantly, every generation gets to participate in that process, rather than bowing down in reverence to the "assembly of demi-gods" which originally wrote it. The ability to do so is one of the features of a truly republican government.

So while I think the Constitution could use an update in order to strengthen its fundamental features -- say, eliminate the slavery provisions and make it more democratic -- I wouldn't hold out any hope that Prof. Levinson's great great great granddaughter won't look back at us in horror at the imbecilic clauses we wrote or kept.
 

I basically agree with Mark Field. On the presiding of an impeachment in the case of a vice president, long practice understood the principle that you cannot be a judge of your own case. I think that probably was implicitly inferred there.

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Looking over the article. First, Chandler v. Wise (1939) fwiw held once a state "forwarded the certification of the ratification of the amendment to the Secretary of the United States, there was no longer a controversy susceptible of judicial determination." So recission is a political question.

The article touches upon the application of not counting rescission did not just include the Reconstruction period, failed/rejected attempts to amend to clarify [into the 1970s] and court precedent.

It also accepts allowing recission seems fair and thus rebuttal should be on the opponents. Evidence back to the 19th Century is given to show that the constitutional power given to the states is limited to an affirmative or negative agreement, not re-decision as allowed in normal legislative practice. Multiple state AG opinions (with one apparent dissent) related to the ERA are cited that recognize precedent goes against recissions being binding but they could send a message.

Concern is also cited about ability to rescind leading to gaming the system, including late surprise recissions. Congress having power over final ratification also can address the need for contemporary support, one decided upon by a national body, not perhaps as little as one small state changing its mind. The implicit contemporary requirement of proposal/ratification can provide Congress the power here (see NPC).

At any rate, such is current law as understood by the Supreme Court. A possible change that allows recissions should at best be done at the beginning of the process.
 

Sandy: Can one defend the proposition that the barebones language of Article V prohibits Congress from doing anything other than “proposing” amendments to the Constitution that are on the table permanently? Sure, in the same way that one can defend the propositions outlined above that Congress is without the power to criminalize tax evasion (and almost everything else)...

Huh?

Even this original meaning libertarian reads the N&P Clause to allow Congress to enact criminal laws "necessary and proper for carrying into execution" the powers Art. I, sec. 8 granted Congress, including the express power to "collect Taxes."

In contrast, Article V does not grant Congress the power to do anything but propose Amendment and enact laws under the N&P Clause for carrying out the ministerial functions of Article V. The Article nowhere grants Congress the power to set a time limit on the States's power to ratify.

Why in the world would any constitutional designer adopt such a principle?

Because the Founders were serious about preventing Congress from abridging State powers.

Whatever one thinks of the justiciability of constitutional amendment procedures, wasn’t the Supreme Court clearly correct in suggesting that some form of “contemporaneous consent” is called for, so that the placement of time limits by Congress, beginning with the 18thAmendment, is simply common sense and not congressional usurpation...

The Court was completely wrong. Amending the Constitution is not analogous to enacting legislation to deal with some new social or economic problem. The ERA seeks to guarantee a natural right to equal protection under the law. Even if Article V permitted it, why should we place a time limit on ratifying this guarantee? The need did not come and go back in the 1970s and 80s, but is instead eternal.

Do states have a right to rescind? I confess that I really don’t understand the argument that they do not. If we believe in “deliberation and choice,” why is it the case that states cede all possibility of future “deliberation and choice” once they check the “for” part of the amendment ballot, unless one also believes they are permanently stuck with a decision not to ratify?

It does not matter in what you believe or prefer. Article V's express grant of power only goes one way - allowing the states to take the affirmative act to ratify. If the states want to reverse a prior decision to ratify, they must go through the amendment process again, as they did with Prohibition.

What we apparently have is a wildly “indeterminate” Constitution and the concomitant invitation to “Herculean” lawyers to spin their various interpretive webs.

Not if you simply follow the document as written. The fact that you or I disagree with a provision of the Constitution does not mean the provision is "indeterminate."


 

"Multiple state AG opinions (with one apparent dissent) related to the ERA are cited that recognize precedent goes against recissions being binding but they could send a message."

If rescission can "send a message", then surely ratification can also. And if it does, then other states might rely on that message when it's their turn. That's the reliance interest I mentioned on the other thread.

 

"We now have 230 years of accumulated interpretation of the Constitution. There's no possible way to account for all of that in a new text."

And that is one of the best arguments for a constitutional convention: That we have 230 years of accumulated circumventions and bad faith interpretations cemented in place by precedent and an entrenched political class. And a new Constitution would sweep all that away, leaving the federal government at a loss for any excuses not to actually comply with the new rules.

Our government is somewhat like a computer that's been running for years uninterrupted, and is now hopelessly compromised by memory leaks, malware, and viruses that have integrated themselves right into the OS. It's desperately in need of a reboot and fresh install.
 

"Not if you simply follow the document as written. The fact that you or I disagree with a provision of the Constitution does not mean the provision is "indeterminate.""

That's true, but you don't get much more indeterminant than silence. Article V doesn't settle this point, it simply doesn't address it. You're reading an awful lot here into the absence of language.

We actually have a clause of the Constitution to tell us what to do when the Constitution is silent on an issue: The 10th amendment. And what it tells us is that the federal government has no power not delegated, and the states have every power not either delegated to the federal government or otherwise forbidden.

Rescission is neither delegated to the federal government, nor denied the states, by any language in the Constitution. If you're going to read into the absence of language, the 10th amendment tells you what to read into it: All open questions get resolved in favor of the states.

This, too, is an argument for a constitutional convention. Perhaps a constitution should not have the prolixity of a law book, but the founders may have gone just a little too far in the opposite direction.
 

Brett: That's true, but you don't get much more indeterminant than silence. Article V doesn't settle this point, it simply doesn't address it. You're reading an awful lot here into the absence of language.

The point is I am not reading anything into Article V. If it does not say it, Congress and the States can't do it. What Article V does say was obviously adequate to ratify the original Constitution, 26 further amendments and perhaps soon a 27th.

Rescission is neither delegated to the federal government, nor denied the states, by any language in the Constitution. If you're going to read into the absence of language, the 10th amendment tells you what to read into it: All open questions get resolved in favor of the states.

By ratifying the original Constitution, the states agreed to limit their powers to amend the Constitution to those granted under Article V.

This, too, is an argument for a constitutional convention.

Agreed. If that States want to add a recession power or Congress wants to add the power to set a time limit to Article V, they can amend the provision. Until then, it says what it says.
 

Brett has obviously spent extensive time with his trend of "overnighting" with his 5:31 AM and 5:49 AM comments. Brett has been trolling Sandy's posts at this Blog for a long time, including with insulting comments. But Sandy has an ally in Brett for a second constitutional convention. Strange bedfellows, indeed. Based upon their positions expressed over time, Brett and Sandy would be at opposite poles of considerations at such a convention. Should Sandy and Brett team up for a drive for such a convention? Sandy doesn't seem to have made significant inroads for such a convention. Perhaps Brett could bring in Trump's base of the Forgotten to push for such a convention. In fact, Brett might bring in the Revengelicals (FKA Evangelicals) and the 2nd A absolutists to tighten up the religion clauses and expand the 2nd A to protect insurrectionist libertarians.

Consider Brett's computer anal-ogy in light of the Facebook and other social media issues that have surfaced in recent years. Can computer tech concepts be relied upon in constructing a new constitution at such a convention in these perilous times when the Trump Administration won't address what Russia did in the 2016 election via such technology?

I'm of the view that such a convention under present circumstances would present national security issues as America's enemies, economically, politicly and militarily would see this as a weakness, perhaps employing computer tech to even further divide America's political dysfunction.

Strange bedfellows indeed (but not in deed).

By the Bybee (expletives deleted, despite Gina), Sandy has not updated to complete his closing incomplete sentence of his post. I still await the "punchline" in the manner of Mark Twain listening to a speech in Germany when a German he inquired of concerning the rapt silence of the crowd informed him they were waiting for the verb.

Further by the Bybee (etc, etc), Brett opens his 5:49 AM comment with a quote but does not identify the source. Brett quotes his soul [sole?] mate SPAM (5:37 PM comment).
 

I'm a morning person on the East coast. There's nothing "overnight" about 5:30AM.

As for me and Sandy, we agree that the constitutional system is broken, disagree about in what way. But we'd both drag it to the shop for some work. I expect that a constitutional convention would produce much both of us would dislike, but it would at least settle some arguments for a while, and bust us out of our current rut.

I find it amusing that, after a series of threads where me and DePalma are in stark disagreement about Article V, (And the implications of the 10th amendment in regards to it.) that you continue to think of us as two peas in a pod. Shag, there's a huge range of opinion outside the confines of your own views; You should get used to the idea that two people can both disagree with you, AND each other.
 

Brett started his 5:31 AM comment with a quote:

"We now have 230 years of accumulated interpretation of the Constitution. There's no possible way to account for all of that in a new text."

but did not provide the source. It's from Mark's comment at 5:32 PM, second paragraph. Brett takes this quote out of context. Here's the rest of Mark's second paragraph:

***
Far from taking on "the prolixity of a legal code" (in Marshall's phrase), it would take on the prolixity of the CFR or, worse yet, the CA Constitution. Even the simple omissions -- who presides over the VP's impeachment? can the President fire appointees confirmed by the Senate? can the President pardon himself? -- would expand the text considerably, and that's before we ever get to phrases like "due process".

***

Brett apparently learned from the portion he did not quote of the meaning of "prolixity," but not really understanding, with Brett's use of the word in the close of his 5:49 AM comment.

Constitutional interpretation/construction has been a major issue with the emergence of originalism beginning in the late 1970s. The 1787 Constitution did not include a specific provision for its interpretation/construction. The battle currently between originalism and non-originalism continues without resolution. This has contributed to the present political dysfunction. In reviewing 230 years of history of the Constitution, a second constitutional convention would have to consider the views of 50 "sovereign states which greatly vary beyond the 13 states back in 1787 primarily divided between slave and non-sale states. Presumably such a convention would not be held in secret, as was the case in 1787. Consider the complexities involved in the establishment of the EU with the long histories of its nations. The 2016 election here has demonstrated significant regional issues, resulting in an EC win my Trump despite losing the popular vote by almost 3 million to his opponent. How can such a convention assure the interpretation/construction of a new constitution to avoid some of the problems with our current Constitution over the past 230 years? Some might respond by providing simpler methods for amending a new constitution. But are easier amendments an answer to future "Know-Nothings" in power?



 

Brett: As for me and Sandy, we agree that the constitutional system is broken, disagree about in what way. But we'd both drag it to the shop for some work. I expect that a constitutional convention would produce much both of us would dislike, but it would at least settle some arguments for a while, and bust us out of our current rut.

Most perceptive and honest observers can see the current political economy is not working and thankfully the number of us seeking a constitutional solution by convention is growing.

Speaking of what Article V permits, if the states ever manage to call their convention, one of the first questions the delegates will confront is whether they are at all bound by the subject matter limits placed upon them by the states or can propose any amendments they please as did the last convention and as called for by Article V.

Sandy better hope the delegates apply Article V as written and ignore any state limits, because all the serious movements to call a convention seek to re-limit our government. See, for example, the Convention of States movement. https://conventionofstates.com
 

Brett, you're more of a "mourning" person. I note your timelines show a lack of spontaneity in commenting on comments of others. Or perhaps you were already asleep when Mark and SPAM posted their comments at 5:32 PM and 5:37 PM, respectively, that you quoted from early this morning.
 

SPAM's 10;07 AM "re-limit our government" comment would seem to be the same pod for Brett.
 

Our government is somewhat like a computer that's been running for years uninterrupted

It hasn't been running "uninterrupted" over 230 years (17 amendments occurred after the first few years, for one thing).

The continual development (imperfect as humans are) -- which was expected and written about by the people of the age (Madison, Marshall et. al.) will continue if some new constitution is in place. Thus has been the case with amendments and state constitutions, which has been changed more often.

We actually have a clause of the Constitution to tell us what to do when the Constitution is silent on an issue: The 10th amendment. And what it tells us is that the federal government has no power not delegated, and the states have every power not either delegated to the federal government or otherwise forbidden.

The Ninth Amendment also says that something not enumerated doesn't mean it is not a right. Anyway, first, again, it also says "the people." Second, this goes back to determining what is "delegated," which includes various implicit things that grow out of the text particularly since the word "expressly" was advisedly (unlike in the Articles of Confederation) not there.

Rescission is neither delegated to the federal government, nor denied the states, by any language in the Constitution. If you're going to read into the absence of language, the 10th amendment tells you what to read into it: All open questions get resolved in favor of the states.

Since the word "expressly" is not in the text, "if you're going to read," applying the Constitution is going to include the text and general implications from the text, since merely reading the bare text is not enough to read the document.

As noted, since at least the 19th Century (if not before), the understanding is that recissions are not allowed. The text was understood to simply give legislatures the power to do one thing -- agree or disagree, not change their minds.

Furthermore, "the text" includes the Necessary and Proper Clause. The text provides Congress power to select one mode of ratification (legislatures or convention) and then when the necessary number ratifies, it becomes part of the Constitution. Who determines when this happens? The practice is that the Secretary of State determines. Long understanding, expressed by the Supreme Court in the 1920s and 1930s, for instance, also suggests a contemporary requirement implicit in the language.

The text. The NPC, the text, gives one specific body, the Congress, the power to necessary and proper to carry such powers. The Supreme Court said in the 1930s that it is a political question. Anyway, the statement that rescission is allowed is argument. The text has long been understood, for at least 150 years, to not allow it. Not just during the Reconstruction. As I believe James noted, international law reflects the same principle. Mark cites in a reliance interest being a factor here.
 

"Speaking of what Article V permits, if the states ever manage to call their convention, one of the first questions the delegates will confront is whether they are at all bound by the subject matter limits placed upon them by the states or can propose any amendments they please as did the last convention and as called for by Article V." (For the benefit of Shag, I'm quoting DePalma here.)

Existing precedent on the matter, while over 200 years old, says "no", and Article V seems dispositive: It is, precisely, a convention for the purpose of proposing amendments. The states in their attempt to limit the subject matter would be taking away from the convention the only it has.

Even if the delegates ignore the states' proposed limits, they're likely to re-limit the federal government, just because they won't be federal officers, and thus don't have that monomaniacal drive to increase it's reach.
 

"The text. The NPC, the text, gives one specific body, the Congress, the power to necessary and proper to carry such powers."

I am not a great fan of using the "elastic clause" as a way to negate the 10th amendment. In its current incarnation, it has become more of a "convenient, and eh, whatever" clause.
 

As I've pointed out several times before, reliance on the 10A begs the question whether Congress has the power. The N&P clause is expressly a grant of power. While I disagree with application of the N&P clause in this particular case, for reasons stated, we're in uncharted territory here and the argument for its application can't be resolved by hand-waving the 10A.
 

Brett demonstrates his spontaneity in his 10:29 AM comment but what did he mean with his:

"The states in their attempt to limit the subject matter would be taking away from the convention the only it has."?

 

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Brett: Even if the delegates ignore the states' proposed limits, they're likely to re-limit the federal government, just because they won't be federal officers, and thus don't have that monomaniacal drive to increase it's reach.

Progressive state governments like progressive national government for two self-serving reasons:

(1) Federal taxing and borrowing money to send back to the states mitigates the need for the states to do the same. Amendments limiting federal taxes, borrowing and spending could cut off that gravy train.

(2) Federal regulations place all states at the same disadvantage. If the states had to compete with one another, high regulation progressive states would be at a significant disadvantage in the competition for business and citizens.

Thus, I see very little or no support from progressive states for a re-limitaiton of the federal government. Indeed, it is an open question whether a sufficient number of nominally conservative states are willing to make the sacrifice.
 

SPAM probably every night before he goes to sleep looks under his bed for progressives. SPAM closes his 11:25 AM screed with this:

"Thus, I see very little or no support from progressive states for a re-limitaiton of the federal government. Indeed, it is an open question whether a sufficient number of nominally conservative states are willing to make the sacrifice."

If a sufficient number of conservative states were willing to seek such re-limitation, they would be sacrificing the welfare of America by weakening the central government and thus national security. But both progressive and conservative states should rein in Trump's monarchical above the law efforts.
 

""The states in their attempt to limit the subject matter would be taking away from the convention the only job it has."?"

Sure, make fun of the guy with peripheral neuropathy. I was a much better typist before my fingers went numb from chemo damage.
 

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I am not a great fan of using the "elastic clause" as a way to negate the 10th amendment. In its current incarnation, it has become more of a "convenient, and eh, whatever" clause.

"Current" being 150 years of precedent on the immediate question?

Some proverbial old person shaking their hand at the sun sentiment doesn't really do much without specifics. The specifics as applied to the case here has been summarized. They aren't merely "current." The key modern precedent is from the 1930s, following up a 1920s precedent, so "those darn progressives" can't even be cited. Conservative and liberal justices joined them.

The 10A is not being negated. The argument is reasoned from the text. To be clear, the Necessary and Proper Clause is not the only argument; it is a particular bow of mine.

The ultimate concern cited is the need for contemporary supermajority ratification at some fixed point. Originally, that wasn't even likely possible given time restraints (took over a week by quick messenger even to deliver things from the most distance points & ratifying moments would be logically fixed points in time, not continual re-examinations that other states might not even be aware of for extended periods of time.

A reasonable time limit, which by the necessary & proper provision can be in enabling legislation, not the fixed text of the amendment, would set forth a reasonable contemporary agreement. Recission is a possible in theory but problematic method here.

It was argued that the non-ratification of the ERA should inform as to the interpretation of the 14A as to the matter of sexual equality). I find this curious -- rejection of a proposal over a hundred years later can be for a variety of reasons. Anyway, the issue of recission has been proposed as an amendment. It failed. But, these "rules" tend to be somewhat arbitrary in practice.

Anyway, bottom line, this is largely academic. The length of time that passed, especially with an express congressional time limit, makes it bad policy to accept ratification. I would even say that as a basic matter of constitutional principle this is true akin to impeaching someone for some trivial reason and doing so by shoddy proceedings. A NYT op-ed today at one point recognizes something similar while supporting a new GLBT Rights Amendment. The basic bottom line there to me is more important than all the rest.
 

Brett, all I was looking for was a missing word or two that I as an 87 year old dotard would not dare assume (because of the "assume" joke and otherwise). There was no need for your Roseanne Barr sympathy defense. I trust you will continue with the benefit of Obamacare to troll this Blog.

By the Bybee (expletives deleted, despite Gina), I note that Sandy has completed the final sentence of his post. I don't think it was a "spoiler alert; I don't think that Sandy would look for re-limitation that the 2 Ps/Pod would seek.
 

Joe, the author of the NYT article you reference at 12:25 PM stated she looked forward to another state ratifying ERA so that the issues that have been discussed here may require addressing, including in court, as this would support the LGBT causes, and perhaps lead to her desired amendment. While ratification of ERA might not succeed, striving towards equality is a worthy continuing goal. (The article is a good read. Can someone provide a link? I'm suffering from carpal tunnel syndrome from squeezing limes in my Dark 'N Stormys.)
 

A new thread is open but per Shag:

https://www.nytimes.com/2018/06/04/opinion/after-masterpiece-its-time-to-change-the-constitution.html

She said that a legal battle would likely arise & she agrees there was a good cause for it arising. I think a fair implication is that she thinks it is rightly a somewhat dubious proposition. Anyway, she supports a new more expansive "Dignity Amendment," which would make the ERA apparently redundant.

"Equality of rights under the law shall not be abridged by the United States or by any state on account of sex, sexual orientation or gender identity."

I still think the current Equal Protection Clause (and the understanding it applies to the federal government via the Due Process Clause, more or less) can do the trick here and cover all persons. Add that amendment, will the implication be some other group warrants some lower form of protection?