Did Michigan trigger a constitutional convention?

posted at 12:01 pm on April 2, 2014 by Ed Morrissey

We often hear talk about pressing for a constitutional convention as a means to address issues that Congress keeps avoiding, especially on debt and spending levels as well as intrusion on states’ rights. States have that option, as long as two-thirds agree on a demand for such a meeting — which hasn’t taken place since the US Constitution was put forward more than 220 years ago. Did a recent call from Michigan for action on balancing the budget hit the two-thirds mark? Fox News thinks it might:

Momentum is building behind what would be an unprecedented effort to amend the U.S. Constitution, through a little-known provision that gives states rather than Congress the power to initiate changes.

At issue is what’s known as a “constitutional convention,” a scenario tucked into Article V of the U.S. Constitution. At its core, Article V provides two ways for amendments to be proposed. The first – which has been used for all 27 amendment to date – requires two-thirds of both the House and Senate to approve a resolution, before sending it to the states for ratification. The Founding Fathers, though, devised an alternative way which says if two-thirds of state legislatures demand a meeting, Congress “shall call a convention for proposing amendments.”

The idea has gained popularity among constitutional scholars in recent years — but got a big boost last week when Michigan lawmakers endorsed it.

Michigan matters, because by some counts it was the 34th state to do so. That makes two-thirds.

The action took place last week, which by the count of WHTC made Michigan the 23rd state to call for the convention — far short of the two-thirds mark.  Stephen Dinan unpacks whether Michigan is 23rd or 34th, or somewhere in between:

By Mr. Watson’s count, Michigan is the 34th state to call for a convention on a balanced budget. The chief problem is that about a dozen legislatures have rescinded their states’ applications.

“There is disagreement among scholars as to whether a state that has approved an application may later rescind that application. If it is ultimately adjudicated that a state may not rescind a prior application, then Ohio’s 2013 application for a Balanced Budget Amendment convention would be the 33rd and Michigan’s 2014 application would be the 34th [out of the necessary 34] on that topic,” Mr. Watson wrote in an email.

Rob Natelson, who has studied similar conventions among the states or Colonies going back to the 17th century, said states always have been able to rescind calls for a convention.

That means, by his count, 18 states that have issued valid convention calls on a balanced budget amendment. He said Florida’s 2010 application could be considered the 19th, but the Legislature added specific language on federal limits to state spending that might not be similar enough for Congress to consider.

A similar issue came up during the debate over the Equal Rights Amendment, which stalled and died in the 1980s. Some states voted to ratify the amendment but then changed their collective minds, and voted to rescind their ratification. The Supreme Court ruled that the rescissions were valid in Idaho v Freeman in 1982, and the ERA ended up dying on the vine partly as a result. The first arbiter of this question will be Congress itself, but any legal action challenging the validity of the count at 34 would likely refer back to the 1982 decision. It’s more likely that the count is 23 rather than 34, in practical terms.

Should we encourage the move to a Constitutional convention? Mark Levin is the most prominent advocate for it, and his reasoning is solid. The option exists as a check on federal power so that it allows states to rein in an acquisitive Congress or executive. After ObamaCare and the borrowing sprees of the last several years in particular, it’s all but impossible to argue that those conditions don’t exist at the moment.

However, the counter-argument to the convention proposal is that, in Forrest Gump‘s famous analogy, it’s like a box of chocolates — you never know what you’re gonna get. It might end up rewriting the entire Constitution, and conservatives might not like the end results. That argument has its limitations, too, as any proposed amendments or rewrites would still require ratification by three-fourths of the states — 38 in total, more than the threshold for the convention itself. Anything too radical in either direction would run into buzzsaws at the state legislature level, which means the only amendments likely to pass muster would be those that specifically enhanced federalism and put a rein on federal spending. It’s more likely that nothing would come of it, rather than anything revolutionary.

Still, it’s an interesting debate, if still a bit academic at the moment. We’ll see what Congress thinks of the count, and see whether it ends up going through the judiciary.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 2

It’s a great academic exercise, but look – the federal government is daily trampling and ignoring the Constitutional limits *they already have*.

Hands up everyone that truly believes Obama, Congress, and the bureaucracy would give a crap about some *new* limitations/requirements put upon them?

Midas on April 2, 2014 at 2:20 PM

So I guess next you will denounce the 9th and 10th amendments?

Brock Robamney on April 2, 2014 at 1:41 PM

Please explain where the heck you drew that from? Because that makes absolutely no sense whatsoever.

GWB on April 2, 2014 at 1:47 PM

If I follow the logic, he is saying that if you don’t trust the states with the power of amending the constitution at an Article V convention, why would you trust them with all the powers that are (supposedly) reserved to them under the 9th and 10th amendments. And, honestly, I think that’s a reasonable question.

Under our system, the states are the ones that are supposed to be given the most power. An Article V convention would just be the states asserting that role, which has been gradually usurped from them. It is a remedy that the founding fathers — the same founding fathers who enshrined our right to freedom of speech and our right to bear arms and so forth, and whom we revere for that — felt necessary and included in the Constitution.

It would take 34 states to call for the convention, and then 38 states to ratify what comes out of that convention. If we are at the point where 38 states would run amuck at an Article V convention, or agree to ratify the results of such a convention run amuck, then we truly are past the point of saving as a nation and I would just as soon see is accelerate the collapse so that we can try to rebuild from the ashes.

Shump on April 2, 2014 at 2:24 PM

Hope and change anyone?

hillbillyjim on April 2, 2014 at 2:25 PM

What about legislative nullification? I will NEVER call for violence as a means to an end, but you can be your ass I will do whatever is required to defend myself and my state if FedGov gets its panties in a bind over a refusal to play ball by their rules.

gryphon202 on April 2, 2014 at 1:28 PM

Agreed; nullification has to be the penultimate step before outright violence.

I have no doubt that nullification will *lead* to outright violence, however.

Midas on April 2, 2014 at 2:34 PM

It is not at all clear what would happen.

In the original CCs, each state had one vote – BUT they were not held under our Constitution, and it is mute on the point. So there would be a huge battle over this, including a battle about how to settle the battle. It would all go to the Supreme Court, probably as original jurisdiction, but there are no real precedents to guide it.

All that before any business hits the floor.

THEN there’s a new battle over the rules of procedure, which presumably would have to be settled by the Convention itself, once its voting procedures are established. It would also take 34 states, or 2/3 vote of the Convention, to pass any Amendments – BUT they would still require 38 states to ratify before becoming law.

So it is difficult to see a CC as some panacea. Amending the Constitution wasn’t intended to be easy, it was designed to require something close to a national consensus, or at least a large majority of support.

Adjoran on April 2, 2014 at 2:39 PM

OK, I’m not sure how this is not common knowledge here at Hot Air, but there is already an ongoing effort to call a Convention of States in order to reign in the power and abuses of the federal government. One of the obstacles to the process is that Congress can deny the applications from the states if the language of the applications varies significantly. Currently there are I bills in various stages in the legislatures of Alabama, Arizona, Alaska,Florida, Louisiana, Missouri, New Mexico, Oklahoma, South Carolina, and West Virginia. The Georgia state legislature passed the bill and became the first state to apply for the convention. That’s eleven states of 34, and all of the heavy lifting is being done by the grassroots. I would urge all of you to check it out for yourselves at http://conventionofstates.com/ Each person that gets involved puts us closer to our goal.

cornbred on April 2, 2014 at 2:40 PM

Agreed; nullification has to be the penultimate step before outright violence.

I have no doubt that nullification will *lead* to outright violence, however.

Midas on April 2, 2014 at 2:34 PM

More simply stated;

Art. V

or

2nd Amd.

D-fusit on April 2, 2014 at 2:40 PM

If I follow the logic, he is saying that if you don’t trust the states with the power of amending the constitution at an Article V convention, why would you trust them with all the powers that are (supposedly) reserved to them under the 9th and 10th amendments. And, honestly, I think that’s a reasonable question.

Shump on April 2, 2014 at 2:24 PM

Huh. I don’t trust any government. They tend to accrue power to themselves (and stealing freedom from the people). The 9th and 10th Amendments are not a block grant of power to the states, but a statement that the states and the people will have to work the rest of it (those things not enumerated in the Constitution) out for themselves. Except for the guarantee of a Republican form of government, they are more than welcome to make a hash of it at the state level.

Not trusting my state to not screw up who goes to a CC and represents them doesn’t invalidate the 9th and 10th Amendments in any way.

If we are at the point where 38 states would run amuck at an Article V convention, or agree to ratify the results of such a convention run amuck, then we truly are past the point of saving as a nation and I would just as soon see is accelerate the collapse so that we can try to rebuild from the ashes.

Shump on April 2, 2014 at 2:24 PM

I’m not sure there is an “if” really in there. I’m more often in the LIB camp. (Your “then” statement.)

GWB on April 2, 2014 at 2:46 PM

If this fails, can’t we just scrap the whole government mess and start over again? At least that’s what the Declaration of Independence says.

timberline on April 2, 2014 at 2:50 PM

The point of a convention of states is to amend the Constitution, not re-write it. The language of the application specifies what can and cannot be addressed as far as amendments go. It has to be specific, otherwise the federal government will reject it out of hand. Each legislature can determine the size and composition of its own delegation. The founders gave us this option as a last resort against an openly tyrannical federal government. The very difficulty in even getting a convention called, much less the results ratified by 38 state legislatures, acts as its own safeguard.

Do you really think the politicians in DC are going to fix the mess they created? Really???!!

cornbred on April 2, 2014 at 2:56 PM

I’m no legal beagle, but the way it was explained to me by one was once the convention is convened, anything goes as far as amendments.

BacaDog on April 2, 2014 at 12:30 PM

The convention to propose amendments would be controlled by the state delegates, Neither Congress nor anybody else in the Federal Gov’t has any power whatsoever over this type of convention.

Why does any Conservative think a convention where the only people proposing things were appointed by conservative legislatures who are fed up with progressives destroying this country is something to fear or worry about?

This isn’t something the progressives would be involved in. They already have their Alinsky methods and activist judges to get what they want. They also have the media to brand it a national Tea Party revolt making it something no Dem/Lib/Prog/Commie would get within a 100 miles of.

Some people here really need to learn and practice the art of critical thinking. Not necessarily you BacaDog, but if the shoe fits …

UnstChem on April 2, 2014 at 3:09 PM

Why do I have the suspicion that the fed would simply ignore any attempt at a constitutional convention called by the states, and nothing would come of it?

Incidentally, if there are any SF fans here, Piers Antony wrote an SF series which used a constitutional convention in the United States of Jupiter as a plot device. The convention abolished the constitution and appointed a dictator to rule by decree instead — hence the name of the series, “Bio of a Space Tyrant”.

pendell2 on April 2, 2014 at 3:24 PM

Wasted article. States obviously have the right to rescind their applications and some have done so. Case closed; commenting is a waste of time. And, yes, that includes mine.

HiJack on April 2, 2014 at 3:30 PM

You wish Rethuglicans! We all know the first thing you would do is add slavery back to the Constitution, then you’d remove the line about “Separation of Church and State” right after butchering the Constitutional mandates for social security and the Right to Healthcare.

Frank Lib on April 2, 2014 at 1:36 PM

I certainly hope this was sarcasm; if not…

Learn some history you ignorant troll. It was the REPUBLICANS who got rid of slavery! In fact, they were so irritated with the Whig party at the time that they split with Whig leadership to create the Republican party to move faster on abolishing slavery. IT WAS THE DEMOCRATS WHO DEFENDED SLAVERY AND OPPOSED CIVIL RIGHTS!

You should be embarrassed for what your party stood for!

dominigan on April 2, 2014 at 3:38 PM

Well, as long as we’re making our constitutional convention wish list:

1) BBA with cap of 15% of GDP and no ability to increase the % without approval of 3/4 of the state legislatures
2) Repeal of the 16th amendment and replacement with a national sales tax (sans food) of 7%, with no ability to increase the % without 3/4 approval of the various state legislatures
3) Repeal of the 17th amendment
4) Term limits: 2 for Senate, 6 for House
5) Something–I don’t know quite what–to fix the SCOTUS. Lifetime appointments aren’t what they were in the 1780′s. The justices today serve way too long and their political power is way too great. Also their appointments have become purely political; this was not what the founding fathers had in mind
6) Lastly, something Shakspearean, like, “Kill all the lawyers.” (Ok, I’m kidding about the last one…sort of)

idalily on April 2, 2014 at 3:39 PM

However, the counter-argument to the convention proposal is . . .

That counter-argument is dishonest Ed. Article V is to amend the constitution, not rewrite it. I know you state this later on, but that line of thinking is entirely wrong. You need to pass any amendment through 38 legislatures.

NWConservative on April 2, 2014 at 3:59 PM

Unless the convention was ruled with an iron hand, lovers of the status quo, government-expanding, deficit-spend-a-thon will put poison-pill Constitutional revisions on the table that would prevent a balanced budget amendment from being approved by three-quarters of states.

Any balanced budget amendment also needs to be written carefully to prevent liberals from continuing to overspend and then manadating tax increases on “the rich” in order to remain constitutional.

FishingwFredo on April 2, 2014 at 3:59 PM

Be nice if friendly software for individual citizens could collectively impeach any politician or runaway judge.

Don L on April 2, 2014 at 4:03 PM

Let’s take the deadbeats in Congress out of the mix. Let the states decide. In addition, let them bring up Immigration enforcement, impeachment, Obamacare, term limits and all of the other issues Congress should address but failed.

Congress has accomplished nothing of value in decades… issue a vote of ‘no confidence’ to everyone in Congress, The Supreme Court, and the Administration. Let’s have a ‘reboot’ peaceful or otherwise.

xmanvietnam on April 2, 2014 at 4:08 PM

Nice try but you’re just creating another law for the lawless government to ignore. Doing things through the law is a waste of time now.

crankyoldlady on April 2, 2014 at 4:17 PM

dominigan on April 2, 2014 at 3:38 PM

its a sarc account. everything franklib posts is snark/trolling.

dmacleo on April 2, 2014 at 4:21 PM

This may have been said before.
The Convention of States (COS)is NOT a Constitutional Convention, it is an Amendment Convention. They will propose amendments to the constitution. These amendments have to be passed by the convention then ratified by 3/4 of the states and if ratified they will go directly into the constitution. No, 3/4 of the states will not ratify uh say, “A repeal of Women’s rights to vote” even if the Amendment Convention passes it. It will not get approved.
Congress and the Judiciary have no authority over this process, none.
Right now COS is calling a convention for amendments to control ” The scope and power of the federal government”
Amendments like:
Term Limits
Balanced Budget
Congressional approval of All Departments and Cabinets every two years. So the legislative branch can bring these agencies under their control as it should be. Etc
Go to Cos.com and read more about it.
This news from the Federal government is an attempt to derail the movement and limit to just the Balance Budget part.
So far these states have petitioned the Secretary of State for an Amendment Convention:
Arizona
Georgia
and very soon hopefully Alaska
with 20 more following suit.
This is good news. This is not a (CC) Constitutional Convention or a Con Con.
Boehner and his ilk are trying to do anything to stop this and not because they are a friend of ours.
Do not fear it. We should pray that this COS catches fire!

Dadof8 on April 2, 2014 at 4:33 PM

GWB on April 2, 2014 at 2:46 PM

Ok so what you are saying is that you don’t trust the states to reign in a runaway government, but you trust them to decide powers not enumerated in the constitution? Sounds like you are making circular arguments here

Brock Robamney on April 2, 2014 at 4:40 PM

Agreed; nullification has to be the penultimate step before outright violence.

I have no doubt that nullification will *lead* to outright violence, however.

Midas on April 2, 2014 at 2:34 PM

The idea that nullification could realistically lead to outright violence only underscores the importance of the 2nd amendment. Conservatives crow about how important the 2nd amendment is to protect against tyranny, but when it comes down to having to actually do so? Sacre bleu! Fuir maintenant!

More simply stated;

Art. V

or

2nd Amd.

D-fusit on April 2, 2014 at 2:40 PM

It’s not an either/or proposition. The people’s failure to assert their own rights is not a guarantee by any stretch that violence won’t happen at some point in the future. All it takes is one nutcase of any political persuasion to light off the powder keg we’re sitting on. And for most of us, the normalcy bias is beyond all reason now.

gryphon202 on April 2, 2014 at 4:44 PM

the Demorats will be rubbing their hands with glee. Can you imagine what they and moderate RINO Republicans will do to our Constitution?? m I am from MI and this is awful if true…america.com/columns/huldah/ Article V convention: how “individuals of insidious views” are stealing our Constitution

Bullhead on April 2, 2014 at 4:47 PM

the Demorats will be rubbing their hands with glee. Can you imagine what they and moderate RINO Republicans will do to our Constitution?? m I am from MI and this is awful if true…america.com/columns/huldah/ Article V convention: how “individuals of insidious views” are stealing our Constitution

Bullhead on April 2, 2014 at 4:47 PM</blockquote

The constitution is being ignored as it is. No sense in getting the vapors over a sacred document that means nothing to those in charge anyway.

And yeah, I know what you're thinking: It probably won't do any good to change it if it will just be subsequently ignored. I tend to agree with that tack. That's why I'm in favor of nullification as well. It's not as though an Article V convention is going to be the iatrogenic national cancer that its detractors make it out to be. That kind of thinking just tells me that people don't really understand how deep the shit is that we are in now.

gryphon202 on April 2, 2014 at 4:53 PM

Given that the Constitution is ignored by the Federal government any time it is “inconvenient” [and noting that its main purpose is to inconvenience tyrants]; it has to be factored in that if such a convention was called, the Federal government would both ignore it if possible, and suppress it if not.

Looking at our body politic, can you name one governmental or political institution that would protest such suppression?

There are implications, kinetic implications, to the attempt. Not saying I am against it. I support the movement as the last peaceful attempt to save the current Constitution. If it fails, just be ready for the consequences.

Subotai Bahadur on April 2, 2014 at 5:13 PM

Obviously, something has to be done structurally to balance the budget and address the other problems in the Constitution such as anchor babies.

cimbri on April 2, 2014 at 5:17 PM

Given that the Constitution is ignored by the Federal government any time it is “inconvenient” [and noting that its main purpose is to inconvenience tyrants]; it has to be factored in that if such a convention was called, the Federal government would both ignore it if possible, and suppress it if not.

Looking at our body politic, can you name one governmental or political institution that would protest such suppression?

There are implications, kinetic implications, to the attempt. Not saying I am against it. I support the movement as the last peaceful attempt to save the current Constitution. If it fails, just be ready for the consequences.

Subotai Bahadur on April 2, 2014 at 5:13 PM

Article V is not the last peaceful means, but rather the penultimate one.

gryphon202 on April 2, 2014 at 5:19 PM

So the founders input a means into the Constitution for states to call a convention?

Yawn – who cares? We don’t follow the constitution anymore haven’t you heard? It’s been replaced by the “Barrystution”

Silly wabbits.

HondaV65 on April 2, 2014 at 5:26 PM

The language of the application specifies what can and cannot be addressed as far as amendments go. It has to be specific, otherwise the federal government will reject it out of hand.

cornbred on April 2, 2014 at 2:56 PM

What do you base this on? Certainly nothing in Article V says that. Here is the entire text of that article:

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, also 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.

There is nothing there that says only amendments on certain matters can be debated at such a convention. Nor is there anything that says states must be specific in their reasoning for calling such a convention. Nor is there anything that gives the federal government the power to accept or reject the call for a convention.

Shump on April 2, 2014 at 5:30 PM

Any new amendments should be several pages long and not allow any wiggle room for black robed interpretation.

Buddahpundit on April 2, 2014 at 5:41 PM

Any new amendments should be several pages long and not allow any wiggle room for black robed interpretation.

Buddahpundit on April 2, 2014 at 5:41 PM

I reject the false premise that it is the Supreme Court’s job to interpret the constitution.

gryphon202 on April 2, 2014 at 5:47 PM

Ed it is not a Constitutional Convention, it is a Convention of States for the purpose of proposing amendments to the U.S Constitution. Big difference.

Conservatives on this site need to take the time to get informed on this subject. Go to http://www.conventionofstates.com and read up. Also read Mark Levin’s book The Liberty Amendments.

Only then come back and tell me of the doom and gloom of the process and how great our current federal utopia is going.

As stated earlier by ConstantineIX the only way we can remedy this situation is the following:

1. Article V Convention of States
2. Proper state nullification (see Kentucky and Virginia Resolutions)
3. Armed conflict

That’s it people. You cannot fix it through federal elections no matter the people sent to Washington. LET ME REPEAT, THOSE ARE YOUR ONLY OPTIONS. Once you realize those are the only options, putting aside the risk of doing nothing, the risk of those solutions becomes inconsequential.

Meat Fighter on April 2, 2014 at 6:13 PM

Under Indianas resolution for the selection of delegates to a convention of the states, we have the right to recall delagates, so thats one check on a so-called runaway convention. Second, the wholepurpose of the Mount Vernon assembly was to establish a framework for a convention of the states that precluded a runaway convention. Third, what we are doing is NOT a constitutional convrntion. It is a convrntion of the state legislatures for the purpose of proposing amnendments. It is a meeting, the BEGINING of a process, nothing more. Fourth, these ammendments are still subject to ratificatuon by 3/5 of the state legislatures, an extremely high threshold. Fiinally, say 100 guys get together and say the Constitution is over with no authority nor mandate to do so…. so what?

demotheses on April 2, 2014 at 6:20 PM

Now we get a bunch of “Somebody ought to do something!” folks in a room to decide the future political arrangement of our country? We would end up with a fascist nanny-state in a terrible rush.

Mind you, that isn’t any worse than where we’re currently headed. But it isn’t the same thing as “what we currently have“.

GWB on April 2, 2014 at 1:14 PM

Seems to me the Continental Congress was a room fulla “Somebody Ought to Do Something” people…..

Fathom on April 2, 2014 at 6:38 PM

Seems to me the Continental Congress was a room fulla “Somebody Ought to Do Something” people…..

Fathom on April 2, 2014 at 6:38 PM

Forget about whether we should vote. Set aside the “civic duty” bullshit. Do you think voting for politicians has done anything to enhance our freedoms in the net over the last 30 years?

gryphon202 on April 2, 2014 at 6:57 PM

I reject the false premise that it is the Supreme Court’s job to interpret the constitution.

gryphon202 on April 2, 2014 at 5:47 PM

Sorry, gryphon, which I could agree with you here, but it’s pretty clear in Federalist 78.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

The Federalists is, after all, usually considered documentation of what people thought they were getting themselves into by ratifying the Constitution.

Furthermore, the Constitution itself reads (Section I):

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Nobody knew what this separate judicial power was, as this co-equal branch of power was an American experiment, to avoid what Madison recounts as the problem with Parliament given the interpretation of law. All laws past and present are under a sitting Parliament. Because Parliament can re-interpret laws as they break them.

What was known territory was the traditional role of judge, who only had say in the findings of law. And taking from the definition of traditional judges, Section II clearly defines that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States….”, and in a “case” under law, it is very common that the judge directs the state’s redress of damages assessed from its findings.

So the judicial co-equal “power” would need some time to define itself from the subordinate judge they knew about. The Constitution doesn’t clearly define what the “judicial power” is, but they do by expecting us to know how cases are tried in Law.

A major weakness of pressing an old role into a new power was the lack of familiarity with it. The founders thought of the Power of Armies and the Power of the Purse. This dichotomy reflected an Age of Expansion point of view. As in that era, kings engaged their ambition by paying for mercenaries, it made sense that controlling the purse controlled the king’s ambition. But in the creation of this third branch, it was overlooked as a “power” in that it didn’t have the Purse or Armies. They designed, but did not see, the rise of the moral power of Propriety and the ability to define what is proper (and even when it’s not “moral” in a particular case, it still pretends to be exactly that). To the extent that the Constitution was a good idea, and to the extent that a good idea is what held the powers in check, then it was necessary to remain within the design of that idea. The powers of the Armies and Purse are de facto brute powers. But as the Constitution succeeded, “the smallest branch” gained power which was meant to preserve all that.

In Hamilton’s defense, he made a clear case between the Court’s interpretation , preserving the will of the people over the other powers, and the will of the Court. All to common these days is that the Court’s findings are the preferences of intellectuals.

Myself, I think we need new amendments to refine the Court, now that we’ve seen two centuries of what it acts like.

Axeman on April 2, 2014 at 7:01 PM

It seems probable that once the threshold for the Constitutional Convention is reached, or perhaps after the new amendments are proposed, the Congress will act to protect their power by introducing their own, weakened amendments.

For example, if the Con-Con proposes to limit terms in the U.S. Senate to two terms, Congress might pass an amendment to limit a senator’s tenure to four terms.

ceruleanblue on April 2, 2014 at 8:17 PM

Myself, I think we need new amendments to refine the Court, now that we’ve seen two centuries of what it acts like.

Axeman on April 2, 2014 at 7:01 PM

No we don’t. The federalist papers don’t have the force of law, and nowhere in the 3rd article does it say anywhere that the supreme court can find a law unconstitutional and thus void it. There is a list of matters in which the supreme court is considered to have original jurisdiction, but the courts are the third branch of FedGov, and I reject wholesale the ability of FedGov to decide for itself what powers it has beyond those explicitly laid out in the constitution itself.

gryphon202 on April 2, 2014 at 8:22 PM

It’s a great academic exercise, but look – the federal government is daily trampling and ignoring the Constitutional limits *they already have*.

Hands up everyone that truly believes Obama, Congress, and the bureaucracy would give a crap about some *new* limitations/requirements put upon them?

Midas on April 2, 2014 at 2:20 PM

Then one of the amendments needs to toughen enforcement of constitutional law. They can’t just make new restrictions, they also need to include consequences for violating the restrictions. For example, if Congress fails to balance a budget, an across-the-board spending cut is triggered. The impeachment process should also be changed so that the President can’t get away with murder because he’s got 34 friends in the Senate that’ll acquit him regardless. I’d rather the decision be made by a delegation of federal judges that were appointed before the current President took office.

TMOverbeck on April 2, 2014 at 8:28 PM

It seems probable that once the threshold for the Constitutional Convention is reached, or perhaps after the new amendments are proposed, the Congress will act to protect their power by introducing their own, weakened amendments.

For example, if the Con-Con proposes to limit terms in the U.S. Senate to two terms, Congress might pass an amendment to limit a senator’s tenure to four terms.

ceruleanblue on April 2, 2014 at 8:17 PM

Exactly right, Ed says that article V has never been used – but it has been several times, and it plays out just as ceruleanblue suggests, except that Congress has always pulled the switch before a convention reaches the threshold.

In the past when Congress started to see the handwriting on the wall, they proposed an weakened amendment that short circuits the calls for a convention. They would rather draft an amendment, than let a convention draft one. It’s not quite true to say that an Article V convention has never been used, it’s just that one has never been allowed to run it’s full course.

A call for a convention is nothing to afraid of , it just forces Congress’s hand, rather than throwing the doors wide open.

HoosierHawk on April 2, 2014 at 9:18 PM

Seems to me the Continental Congress was a room fulla “Somebody Ought to Do Something” people…..

Fathom on April 2, 2014 at 6:38 PM
Forget about whether we should vote. Set aside the “civic duty” bullshit. Do you think voting for politicians has done anything to enhance our freedoms in the net over the last 30 years?

gryphon202 on April 2, 2014 at 6:57 PM

Gryph, not sure if you understood what I was implying….I meant that it takes men of principal banding together to affect change- as seen in 1774-1789- and that this type of nationalistic belief must be the driving force for any meaningful change going forth…. I’m sure we’re thinking along the same lines, we just may be a page off…..

Fathom on April 2, 2014 at 9:59 PM

Gryph, not sure if you understood what I was implying….I meant that it takes men of principal banding together to affect change- as seen in 1774-1789- and that this type of nationalistic belief must be the driving force for any meaningful change going forth…. I’m sure we’re thinking along the same lines, we just may be a page off…..

Fathom on April 2, 2014 at 9:59 PM

There are so few men and women of principle left inside and outside of politics, it may not matter. I see the insistence that I vote as an insistence that I rely on politicians to fix what politicians broke. That is the worst thing we can do right now. And I really don’t believe that We the People have the guts to do what is necessary. I’m beginning to wonder if we are worthy of the blood our ancestors shed for us.

gryphon202 on April 2, 2014 at 10:06 PM

First of all, I say that we go for it. At this point, we have very little left to lose. By the way, is there a list of states which have passed (and not rescinded) their call for this? I want to pressure my state if it is not on the list and have my friends in other states pressure theirs.

In the original CCs, each state had one vote – BUT they were not held under our Constitution, and it is mute on the point. So there would be a huge battle over this, including a battle about how to settle the battle. It would all go to the Supreme Court, probably as original jurisdiction, but there are no real precedents to guide it.

All that before any business hits the floor.

What if Chief Justice John Roberts of The Supreme Court presides over the Constitutional Convention? That would hopefully mean that anything that is done there would later pass Supreme Court muster.

Theophile on April 3, 2014 at 12:36 AM

Wow. Some really good, thoughtful arguments here. Some of you know way more than I do about Constitutional matters.

Continue, please.

Deckard BR on April 3, 2014 at 10:01 AM

Myself, I think we need new amendments to refine the Court, now that we’ve seen two centuries of what it acts like.

Axeman on April 2, 2014 at 7:01 PM

No we don’t.

gryphon202 on April 2, 2014 at 8:22 PM

How’s that? How are you going to curb the current practice of the Court unless we make specific limitations to guide them to a proper view of the court. How else would you nullify judicial review except to expressly state that the power of judicial review, previously assumed by the court, has met with the disapproval of the people?

Without new language they can continue business-as-usual, but they can only flout and invite the wrath of the people by ignoring express Constitutional dictates.

The federalist papers don’t have the force of law

An argument I have made myself many times. But the Federalists are indispensable for arguing about original intent, which is the bedrock of judicial reserve.

We could argue that the founders (including the Federalists) give the idea that the Constitution was made to be interpret-able by the common man, that going beyond the plain text of the Constitution is a swindle by lawyers–however the Constitution does not say that and neither does any argument that has the force of law. In fact there are a number of informal arguments about the common understanding of how the Constitution was meant to be read that can only be found in the non-legal words of the founders which do not have the force of law.

That the source material that makes up the understanding of a law must have the force of law, is perhaps an infinite regress. We can only quote the founders where they specified something in law?

The Declaration of Independence is not law, otherwise it would legislate that when two bodies meet an impasse, where one of them is previously recognized as sovereign and one is, by the declaration, proclaiming its sovereignty, that the former subordinate group, now sovereign, should notify the other about the terms of their separation. Okay, so who legislates across separate sovereign bodies?

nowhere in the 3rd article does it say anywhere that the supreme court can find a law unconstitutional and thus void it.

Agreed. But it also doesn’t define the newly created co-equal judicial power either. It just assumes that we would understand the transfer from subordinate jurist to jurist co-equal to King and Parliament.

How can you say that something that had never been nor was defined at any length could be “simply stated”? Take for example the “Power of Armies” was the power to ransack countrysides, take land and possibly prior to being defined by the 3rd amendment to force the quartering of troops in homes, but that was checked in giving Congress the duty of declaring war and again the offsetting power of the “Power of the Purse”, so the people, through their representatives could deny the supreme executive the funds to continue their exploits.

That seems to be Madison’s argument. “Where would we have given the President the power to quarter troops in people’s houses?” So given the behavior of real government is it a good thing or a bad thing that we have protections from this? It’s because the at the commonmost level, people were drawing their understandings from parallels with the King and Parliament.

There is a list of matters in which the supreme court is considered to have original jurisdiction, but the courts are the third branch of FedGov, and I reject wholesale the ability of FedGov to decide for itself what powers it has beyond those explicitly laid out in the constitution itself.

But judges are always ruling on the general principles of law as it applies to a specific case. The cases are always details that are beyond the scope of the express law. It is the judge that needs to apply the specifics to their general category contained in the language of the law.

But even beyond that, the Constitution deals with power, laying it out and checking it. One thing I liked about Mike McConnell’s treatment of the Hobby Lobby case is that even if Congress tried to cede its power to the Secretary of HHS, HHS is not a Constitutional-level entity. Congress is, and The People are. McConnell argues it actually weakens the case that something the HHS says is a “compelling interest of government” if Congress punted on it. Congress is the best case to make the case that it is a “compelling interest of government”. Since Congress put a number of decisions of the ACA into an a scope where it seems to be an “administrative choice” it would have 0.0 degree right to impinge upon the free exercise of religion.

However right McConnell is in this, he has no standing to decide that that’s just the way thing are. Real power appointed judges who might say otherwise, and have, at least by the tradition of appointments, the power to decide otherwise.

Finally, there is the case of a contract. In civil law, the contract is enforced by judges. Two relatively sovereign parties surrender another part of their sovereignty to the contract to be enforced, in breach, by a third party represented by the state court and its judges. The judges interpret whether or not a breach has occurred and who breached it. If the states surrender part of their sovereignty to the union of states in a contract supposedly having the force of law, how can that contract be enforced between sovereign states and the federal entities which have the force of that contract?

The Constitution was drafted within the context of real power, to check the exercise of real power and to coordinate the powers of the sovereign states. Myself, I want to put more checks on this unseen “judicial power” based on its road record. If we get the people all on the same page to storm Washington and shake their fists at the three branches of government because they don’t read the Constitution in the minimalist way we think it should be read, we’ve achieved nothing. If we still have this power, then we can go forward, if the powers that be have determined that we don’t need this power, then the only recourse is to make a new government, and hope that that new plan doesn’t go off the rails somewhere when challenged with the real power that a government assumes.

Please don’t take this long post as trying to lecture you or sway you to “my position”–which I’ve only mentioned here or there. Right now, I’m just trying to bridge the cognitive gap between what you see and what I see.

Axeman on April 3, 2014 at 1:34 PM

Please don’t take this long post as trying to lecture you or sway you to “my position”–which I’ve only mentioned here or there. Right now, I’m just trying to bridge the cognitive gap between what you see and what I see.

Axeman on April 3, 2014 at 1:34 PM

There ought not to be a cognitive gap when what we see are the same words that mean the same thing. Politicians that don’t follow the constitution now aren’t going to follow it because we change it.

I think where this cognitive gap is occuring is that you are telling me how things are, and I am in turn telling you how they should be. I know what judges do. That’s what pisses me off. Nowhere in the 3rd article of the constitution does it say anything about a court’s, Supreme or otherwise, ability to render a law invalid. You are, as always of course, free to point out where I am wrong if indeed I am wrong. But English is my first language and I have no inclination towards learning lawyer-speak.

gryphon202 on April 3, 2014 at 3:01 PM

We’ll see what Congress thinks of the count, and see whether it ends up going through the judiciary.

Is this subject to Congressional review, or do the several States just put their heads together and select a location when they count enough States have called for it?
Something tells me that, if it’s supposed to be a check on Congress, Congress is specifically left OUT of the decision loop. Otherwise, the fox is in charge of the chicken coop – not what the Founding Fathers had in mind.

ReggieA on April 3, 2014 at 5:47 PM

Axeman on April 2, 2014 at 7:01 PM

Both sides acknowledged the role SCOTUS would have. The Anti-Federalist view:

“The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, &c.”

The first article to which this power extends, is, all cases in law and equity arising under this constitution.

What latitude of construction this clause should receive, it is not easy to say. At first view, one would suppose, that it meant no more than this, that the courts under the general government should exercise, not only the powers of courts of law, but also that of courts of equity, in the manner in which those powers are usually exercised in the different states. But this cannot be the meaning, because the next clause authorises the courts to take cognizance of all cases in law and equity arising under the laws of the United States; this last article, I conceive, conveys as much power to the general judicial as any of the state courts possess.

The cases arising under the constitution must be different from those arising under the laws, or else the two clauses mean exactly the same thing.

The cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it.

This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.

XI
31 January 1788

rukiddingme on April 3, 2014 at 10:58 PM

gryphon202 on April 3, 2014 at 3:01 PM

Webster speaks English and doesn’t require one to learn lawyer-speak:

But, Sir, the people have wisely provided, in the Constitution itself, a proper, suitable mode and tribunal for settling questions of constitutional law. There are in the Constitution grants of powers to Congress, and restrictions on these powers. There are, also, prohibitions on the States. Some authority must, therefore, necessarily exist, having the ultimate jurisdiction to fix and ascertain the interpretation of these grants, restrictions, and prohibitions. The Constitution has itself pointed out, ordained, and established that authority. How has it accomplished this great and essential end? By declaring, Sir, that “the Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.”

This, Sir, was the first great step. By this the supremacy of the Constitution and laws of the United States is declared. The people so will it. No State law is to be valid which comes in conflict with the Constitution, or any law of the United States passed in pursuance of it. But who shall decide this question of interference? To whom lies the last appeal? This, Sir, the Constitution itself decides also, by declaring, “that the judicial power shall extend to all cases arising under the Constitution and laws of the United States.” These two provisions cover the whole ground. They are, in truth. the keystone of the arch! With these it is a government; without them it is a confederation. In pursuance of these clear and express provisions, Congress established, at its very first session, in the judicial act, a mode for carrying them into full effect, and for bringing all questions of constitutional power to the final decision of the Supreme Court. It then, Sir, became a government. It then had the means of self-protection; and but for this, it would, in all probability, have been now among things which are past. Having constituted the government, and declared its powers, the people have further said, that, since somebody must decide on the extent of these powers, the government shall itself decide; subject, always, Iike other popular governments, to its responsibility to the people. And now, Sir, I repeat, how is it that a State legislature acquires any power to interfere? Who, or what, gives them the right to say to the people, “We, who are your agents and servants for one purpose, will undertake to decide, that your other agents and servants, appointed by you for another purpose, have transcended the authority you gave them!” The reply would be, I think, not impertinent, “Who made you a judge over another’s servants? To their own masters they stand or fall.”

rukiddingme on April 3, 2014 at 11:01 PM

Both sides acknowledged the role SCOTUS would have. The Anti-Federalist view:

rukiddingme on April 3, 2014 at 10:58 PM

That was actually a point I had deleted by a page refresh: That one could read the Anti-federalists and see what they took the third article to mean, and see that it was understood on both sides.

Thanks for your quote.

Axeman on April 3, 2014 at 11:38 PM

Finally, a State that sees light at the end of Democratic Tunnel Vision. Hawaii, has a Constitutional requirement to hold a Constitutional Convention every 10 years.

However, Unions and politicians have not allowed the law to be carried out, claiming it would be to expensive and there is no money in the budget for it, it would cost jobs, and make non native Hawaiians more powerful over the native Hawaiian’s.

MSGTAS on April 4, 2014 at 10:15 AM

Well, as long as we’re making our constitutional convention wish list:
(…)
idalily on April 2, 2014 at 3:39 PM

May I add my two cents’ worth? I’d like to propose a new amendment, one I haven’t seen mentioned by others.

I. No civilian Law, Rule, Regulation, or other federal stricture shall have force, save upon proper enactment as in Article I.

II. Whereas all legislative authority is vested in Congress, Congress shall not delegate, authorize, or otherwise evade this responsibility.

III. Any non-compliant stricture shall be void, three years after the enactment of this Amendment.

This is intended to strip the Executive and the Bureaucracy of all power to issue regulations in lieu of proper legislative actions. “The Secretary of HHS shall…” NOT!

ReggieA on April 4, 2014 at 1:37 PM

Comment pages: 1 2