Tuesday, October 28, 2014

Packed and ready to go . . .

While the legal nuances of a Convention to Propose Amendments are many, two major questions troubled me. First, how to address the lunatic fringe from hijacking the convention? Upon meditation, I concluded that this was a risk that must be accepted for what is the alternative. Allow the embedded status quo elites to voluntarily give up the power they have amassed? I think not. Instead, for better or worse, I prefer to trust the political honesty and goodwill of the people in the various states, when called upon to discharge their patriotic duty to discharge this grave Constitutional authority and responsibility. I will leave the question of how the delegates are chosen by each state for another day.

Second, logistically, how would such a Convention proceed. The Founding Fathers recognized this from the very beginning of our national history. Article V of the Articles of Confederation (1781) stated, ”In determine question in the United States in Congress assembled, each State shall have one vote.” Thus, at the time the 1787 Constitutional Convention, this concept was the law of the land. It would be absurd to maintain the Founding Fathers who used this “one state/one vote” concept at the Constitutional Convention of 1787 could not have intended another system of “count” for ratification or convention applications as such a counting system would have been illegal under the Articles of Confederation. Noteworthy is that if any other system was to be employed, it would have to have been specified in the new Constitution, which it was not. The Constitution granted limited, specified powers to the United States, and all other powers not specified were retained by the states.

As the Founding Fathers determined over two hundred years ago, by acknowledging that the vote by the various states is an affirmation, they understood that delegate votes are for the purpose of expressing the vote of the state, thus expressing both the sovereign authority of the people and the sovereign authority the people have given to the states. In turn, this cumulative vote of the delegates, each of which has the same constitutional authority within the boundaries of each state as each delegate represents the same population value and thus sovereign authority, is used to express the vote of the state. In this manner, the sovereign authority of each delegate is equal.

Having resolved these basic questions to my satisfaction, I determined to embarked on a course both novel and, as it turned out, far from my expectations.


Wednesday, October 22, 2014

that extreme difficulty which might perpetuate its discovered faults

Some observations on the nuances of Article V are in order. First, the plain language of Article V is clear and decisive: Congress shall call a “Convention for proposing Amendments,” not a convention for proposing an amendment. It is therefore clear than an Article V convention has the power to consider various issues and the right to submit various amendments to the states for consideration and, if warranted, ratification. In addition, the language in Article V does not authorize the states to apply for an amendment; rather they are only authorized to apply for a convention for proposing amendments.

Second, the focus of Article V is clearly on the ability of the states to demand a convention, and not on the subjects to be considered by such a convention. Rather, the focus is on the process of amendment, as demonstrated by the language of the Constitutional Convention delegates Morris and Gerry who “moved to amend the article so as to require a Convention on application of 2/3 of the Sts...”. Therefore, Congress is without authority to obstruct a convention in any manner it might attempt, including failing to call for one in a timely fashion as it is required to do. 

Last, James Madison addressed Article V in The Federalist No. 43 when he discussed the great value of allowing both Congress and the states to proposed changes in the Constitution:
“‘[t]o provide for amendments to be ratified by three-fourths of the States, under two exceptions only.’ That useful alterations will be suggested by experience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the Convention seems to be stamped with ever mark of propriety. It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other.”

Clearly, therefore, a convention to propose amendments was intended as a check to regulate excesses of the national government, and it was not intended that the national government could avoid, deny, regulate or otherwise blunt this constitutional check for its own self-interest.


Saturday, October 18, 2014

if the Government should become oppressive, as he verily believed would be the case.

Drawing in large measure on a well-written legal brief on Article V, I have learned the following:

On September 12, 1787, the Committee of Style delivered its report of the Constitution as revised and arranged.  Article V read as follows:
V. The Congress, whenever two-thirds of both houses shall deem necessary, or on the application of two-thirds of the legislatures of the several states, shall propose amendments to this constitution, which shall be valid to all intents and purposes, as part thereof, when the same shall have been ratified by three-fourths at least of the legislatures 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 1808 shall in any manner affect the and sections of article.
On September 15, 1787 the Constitutional Convention reached discussion of Article V. Colonel Mason spoke against the amendatory article. He focused on his concern that Congress could prevent the proposing of amendments. On the back of his copy of the draft Constitution, Mason wrote the following:
Article 5th. By this Article Congress only have the Power of proposing Amendments at any future time to this constitution, & shou’d it prove ever so oppressive, the whole people of America can’t make, or even propose Alterations to it; a Doctrine utterly subversive of the fundamental Principles of the Rights & Liberties of the people[.]
Mason’s notes served as the basis for the comments he gave on the convention floor, which were recorded by Madison: 
“Col. Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.” 
As a result of these concerns, Gouverneur Morris of Pennsylvania and Elbridge Gerry of Massachusetts “moved to amend the article so as to require a Convention on application of 2/3 of the Sts...”

The Convention unanimously agreed to the motion by Morris and Gerry, thus acceding to Mason’s request to re-insert the convention method of amending the constitution into Article V.  

Thus today we are presented with the very concern that George Mason feared: That "the [federal] Government should become oppressive".  Fortunately for us, George Mason inserted the People's saving grace:  A state-called Convention to Propose Amendments which is what I now believe is necessary to save the Union from the excessive concentration of power in federal hands.