by Rob Natelson, Electric City Weblog
Many (including this writer) think the federal government has slipped its constitutional leash and that the people may have to re-stabilize matters with one or more constitutional amendments. How would this be done?
Article V of the Constitution provides for four methods of amendment:
1. Two-thirds of both houses of Congress propose an amendment to the state legislatures. If three-quarters of the state legislatures ratify, the amendment is effective. Of the 27 amendments approved so far, 26 have been ratified by this method.
2. Two-thirds of both houses of Congress propose an amendment to state ratifying conventions. If three-quarters of the conventions ratify, the amendment is effective. The Twenty-First Amendment (repealing Prohibition) was ratified by this method.
3. Two-thirds of the state legislatures apply to Congress for a new constitutional convention to propose amendments. The Constitution says Congress “shall call†the convention – in other words, Congress has no choice. The convention proposes amendments. Congress must choose whether to send them to the state legislatures or to state conventions for ratification.
If Congress opts for the state legislatures, the amendments become effective when ratified by three-quarters of them. Over the years there have been scattered state applications to Congress for a constitutional convention, but never two-thirds of the states on the same topic at the same time.
4. Two-thirds of the state legislatures apply to Congress for a new constitutional convention to propose amendments. Congress must call a convention. The convention proposes amendments, and Congress opts for a state-convention method of ratification. The amendments become effective when ratified by three-quarters of the state conventions.
The Founders (accurately) expected the first and second method to be used more often than the third or fourth, since in dealing regularly with federal issues Congress would be well positioned to know when amendment was needed. But sometimes Congress itself would be seen as the problem, so the Founders included Methods #3 and #4 as bypass options.
There is a long-standing debate over whether the state legislatures can limit the scope of a convention to only certain proposals, or whether the convention can propose anything it wants to. Some have argued that Methods #3 and #4 are dangerous because a “runaway†convention might disregard its call and propose anything that suited its fancy. (The 1787 convention is cited as an example.)  But even if the convention were not legally bound by its call, the danger of a “runaway†is more imaginary than real.
First, any convention would be under enormous political pressure to honor the terms of its call, especially knowing that any proposal it submitted would have to go back to the very states who initiated the call. More importantly, anything the convention proposed would have to be approved by even more states than applied for the convention at the outset.
Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history. He is currently seeking a publisher for his latest book, The Original Constitution.
The problem with a constitutional convention is that I think the likelihood of giving the government MORE power and making society LESS free is a much more likely scenario than actually accomplishing amendments that enforce a standard in keeping with the Framers' intentions.
Because of that, I think a constitutional convention could be one of the worst things that ever happen to this country. At least now we have a document that demonstrates a protection of freedom and liberty. Imagine what the majority of politicians now would do to our Constitution?
Dan,
As I've said before, if I were making an argument against an Article V Convention (which I'm not) then a version of your's would be the argument I would make. I wouldn't lay it on the Washington politicians, though; I'd lay it right at the feet of the people that elect them — you know, the dependent classes among us — those people that think government is the solution to all of their problems, hence they vote accordingly.
Dan: While I would support any constitutional amendments that clearly and directly limit the size and scope of government power – like a term limit or balanced budget amendment – I haven't seen many (if any) proposals for a con con or even individual amendments that are calling for more limits on power.
Randy Barnett's "federalism amendment" is a great example. In his proposal he talks about a need for limiting government, but the amendment itself creates a situation where the judicial branch will end up with more power than it has today. I wrote about this in more detail here
Michael wrote:
"Dan: While I would support any constitutional amendments that clearly and directly limit the size and scope of government power – like a term limit or balanced budget amendment…"
Michael, why? Why would you support a constitutional amendment limiting the terms of our federal representatives?
Teryr, I realize you pointed that at Michael, but I'm going to give you a reply on it as well. It is very simple. To stop career politicians.
Career politicians live in a fantasy world that does not relate to the rest of us at all. One needs only to look at the insanity in DC for proof.
Term limits create a situation where anyone running for office also has to have marketable skills in the world the rest of us live in as well. If Joe is a plumber and wins an office, he knows he will be returning to plumbing when his term limit is reached. Therefore, he is unlikely to vote for legislation requiring plumbers pay a licensing fee in order to work.
Darkwolfe, thanks.
So how many terms do you propose we limit them to — one, two?…
Two would be reasonable.
Well, it's certainly more reasonable than one.
I'm personally not as confident in my own wisdom and knowledge as some appear to be. And certainly not to the extent that I believe myself to be more enlightened and more informed than the framers were. Someone a few days ago said that term limits imposed on Congress members is a "no-brainer." I'm by no means an expert on the founding generation, but it occurs to me that if term limits is such a no-brainer, and if the founders were half as wise and informed as we give them credit for being, then why didn't they think to include them in the constitution? Well, it seems like they covered that in Federalist no. 64. But anyway…
The only kind of constitutional amendment that I could ever lend my support to is one that kept with the original intent of the constitution; one that would amend new innovations out of the constitution.
I think the Founders did not include the limits simply because they did not expect people to have entire careers in politics. They maintained their normal trades even while in office during that time. Unfortunately, that does not happen today.
Darkwolfe,
So they blindly left the door wide open for career politicians to come in and destroy America via the very instrument they created to secure liberty to themselves and posterity? It's almost as if you're saying that the framers lacked a good understanding of human nature. But we know this isn't the case because they wrote voluminously on the subject.
No; they didn't leave term limits out because they were blind to the ambitions, avarice and intrigue of unprincipled career politicians, they left them out because the design of the federal government would not permit their including them.
Darkwolfe,
So they blindly left the door wide open for career politicians to come in and destroy America via the very instrument they created to secure liberty to themselves and posterity? It's almost as if you're saying that the framers lacked a good understanding of human nature. But we know this isn't the case because they wrote voluminously on the subject.
No; they didn't leave term limits out because they were blind to the ambitions, avarice and intrigue of unprincipled career politicians, they left them out because the design of the federal government would not permit their including them.
Btw, the Heritage Foundation has a paper concerning federal term limits posted at their site in which they claim, among equally untenable claims, that the founders didn't include term limits in the federal constitution because they deemed them too cumbersome to include in a short document. Such claims are simply ridiculous, and serious readers cannot possibly take these claims seriously. Noteworthy is that they provide no citations which support the claim, they just state it as if it were some kind of self-evident fact that needs no support.
Btw, the Heritage Foundation has a paper concerning federal term limits posted at their site in which they claim, among equally untenable claims, that the founders didn't include term limits in the federal constitution because they deemed them too cumbersome to include in a short document. Such claims are simply ridiculous, and serious readers cannot possibly take these claims seriously. Noteworthy is that they provide no citations which support the claim, they just state it as if it were some kind of self-evident fact that needs no support.
Ok that begs the question.. Why would the design of the Federal Gov't preclude term limits? That doesn't appear to hold much logic to me.
I think I'll have to disagree with you a bit on the "blindly left the door open" bit though. I'll need to double check but I don't believe there were any career politicians in office until the Progressives appeared on the scene in the late 19th Century.
By the way the Constitution is written, the offices of the Federal Gov't were not nearly as power-laden as the usurpation offices of today (Might have coined a word there). They didn't pay to well either. So by those two things alone I think they hoped that repeat office holders would be there for the right reasons rather than the wrong ones. Unfortantely, if my thought is accurate, they left a few gaps that have been taken advantage of.
Remember the Founders were just as human as we are. They did a wonderful job of getting things started, but they were not perfect either.
Okay, anytime one engages himself in an argument like this, he runs the risk of causing offense. It comes with the territory, but I want you know from the outset that that is not my purpose, nor my goal.
My main purpose here is this, and to borrow a phrase from the illustrious General Washington — let us with caution indulge the supposition that the federal government can ever be reformed by way of "limited" means of reformation such as term limits, effectively pouring new wine into an old bottle. Haven't we done that enough already with our other amendments?…
You're doing fine Terry. I never take offense to an opposing point of view so long as the discussion is respectful. In that, you are doing just fine and the discussion is quite good!
Good purpose too.
Is the federal government allowed to ratify an amendment.
If the answer to this question is no.
My next question would be.
Were those who ratified the United States Constitution, given confidential authority, to instantaneous reconstruct, State constitutions.
Was this United States Constitution specifically designed to prevent centralized social control.
Most (if not all) of the States at that time already had State Constitutions. The States recognized that they had a common background and should naturally be a tight alliance with some small central governemtn. However that same government was not to be a central control. More along the lines of a meeting place to work on issues that affect all of the States.
Which in itself is why DC is not supposed to have representation in the House or Senate. It is the Meeting place for the States, not a State itself. Want representation? Don't live in DC.
Even better – what if the federal government only had D.C. to worry about – only DC in its sphere of power?
One can dream, right?
Most (if not all) of the States at that time already had State Constitutions. The States recognized that they had a common background and should naturally be a tight alliance with some small central government. However that same government was not to be a central control. More along the lines of a meeting place to work on issues that affect all of the States.
Which in itself is why DC is not supposed to have representation in the House or Senate. It is the Meeting place for the States, not a State itself. Want representation? Don't live in DC.
I've not seen any indication that the US Congress has the will, or the true power to straighten out our Federal Government.
Any solution to our broken system that calls for Capitol Hill to do the right thing, is just far fetched when one considers the kind of influence that the banking, defense, pharmaceutical and media lobbies have on DC.
The US Congress are not currently abiding by the constitution, so what reason is there to think that a constitutional remedy exists on the Federal level?
I see none and therefore a push for states rights is the only way forward in my mind…
Having great difficulty posting today.
Dan makes a good point with the concern that a convention does indeed have a fair amount of risk. However, given the current political climate at the state level, it appears to me that the risk might well be reduced at this point in time.
Consider the number of States with Sovereignty Resolution and the developing Firearms Freedom Acts appearing. These two things alone indicate that the States are hearing the People far more than the jokers in DC. Both of these actions are directly in support of the Principals of Liberty.
Additionally, consider the requirement of two-thirds for an Amendment to be passed. Then look at the way the States voted in the Presidential Elections last year. Remember that ratifying an Amendment counts States, not populations. That is very good news for folks with a preference to Liberty over Collectivism as only a few States actually voted "Blue" in the last election. (Other pithy comments regarding that event I'll save for another day.)
There is always some risk in life. Without it, there is no challenge to living. At this point, look carefully and remember that "Those who would trade Liberty for Security deserve neither."
Additionally, consider the requirement of two-thirds for an Amendment to be ratified.
Actually it takes 3/4 of the states to ratify:
…which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof…
Ya you're correct Terry. Got my numbers muddled.
And now the rest of my original post:
Worthwhile Amendment Concepts
-Term Limits for all Elected Officials in DC. No career politicians.
-Balanced Budget ending all deficit spending
-All "Assistance" programs ended. (Those properly belong to the States in the first place.
-Ban of permanent military bases abroad unless an ally requests it and agrees to pay at least 50% of the base costs.
-Ban of lobbyists in DC. What they do at the State level is up to the States.
-Ban on all donations to Federal Election Campaigns. Candidates get an equal amount from a Federal Fund and that is all. When it is gone, it is gone. Campaigns limited to three months.
The above ideas are food for thought and discussion. Some are straight-forward. Some require some detailing.
My readings of the State constitutional conventions, and State Constitutions, would agree with you Darkwolfe.
States have their own procedures, that prevent them from amending, by any other means.
I myself have found nothing, that would cause me to disagree with your DC statement.
I’m with you Bryce.
This federal government, has become, unworkable.
I'd like to add a few comments.
First, the terms of Article V have been satisfied so far as a convention call is concerned. All 50 states have submitted 750 applications for a convention call. The applications can be read at http://www.foavc.org.
Second, the "runaway" convention is a myth created by those supporting scrapping the Constitution by allowing the government the right to disobey Article V and thus establish the government can veto the Constitution. You can read the details at http://www.nolanchart.com/article6449.html .
Third, if you take the time to read the applications you'll clearly see the general theme of them is to limit the federal government in several ways. This neatly explains why Congress has ignored these applications.
Fourth, in a recent federal lawsuit, the details of which can be read at the foavc web site at FAQ 9.1, the attorney of record speaking officially for the Congress of the United States officially acknowledged in public court that the terms and conditions for a convention call were as follows: 1) it is peremptory (a legal term meaning they go no choice); 2) the call is based on a simple numeric count of applying states; 3) there are no other terms or conditions such as same amendment issue, length of time under which the applications must be submitted and so forth.
Fifth, as to the "dangers" of a convention. In the first place it can only propose amendments to the present Constitution. If not ratified, the proposals have no effect whatsoever. In the second place, all delegates to a convention must be elected and be under the restrictions of the same laws as all other federal officials meaning they cannot take the illegal actions mentioned without penalty of law. The convention and its delegates will be closely watched and anything they do can be ignored if needed. We need not worry about a convention.
As to pushing for "states rights", the convention is the primary tool of "states rights." What other tool to limit the federal government is described in the Constitution other than Article V?
Even if 10,000 complaints were to exist, there mere existence, is not the authorization, buy which we are bond to act, because of them, or in spite of them.
Words can only describe our discontent.
Our right to decide, that we should act, is what separates us, from the rushing mob.
Darkwolfe, I think the point at which we moderns usually go wrong on such questions is that we tend to see them from a modern-centric point of view. This creates a real blind spot in our manner of thinking. It is a very common phenomenon, though. For instance, many Westerners have a Western-centric view of the world, and they project that view on other peoples and cultures, as if to say they are just like us. But that simply isn't the case. And the truth of the matter would be more evident to these people if they would simply remove the blinders from their eyes that is their Western-centric conceptualization of things.
Believe me, many moons ago I was of the opinion that federal term limits were a good idea, among other extra-constitutional, modern-centric views I held. But no more. Every step we take which establishes more mob rule (which is what democracy is), the further removed we get from the purity and simplicity of the original system, and of its reformation.
To answer the first paragraph- You are quite correct about the tendency to project our own views. This is a human tendency across the board. However, we have a very large amount of our Founders writings that shows their views very clearly thus reducing the confusion. After all, there foundation is what we have built on. The problem is the viewpoints that want to trash that foundation. They fail to realize the building will then fall in on them.
To answer paragraph two- One very simple question to pose.. If the mob gets in a candidate, how do we get that candidate out? That is what term limits would provide, a chance to break the mob rule. We have that mob rule already and the term limits are more deparately needed than ever.
I agree with you that democracy is, in fact, mob rule. Our Founders knew that, thus founded a Republic instead.
Darkwolfe wrote:
You’re doing fine Terry. I never take offense to an opposing point of view so long as the discussion is respectful. In that, you are doing just fine and the discussion is quite good!
Good purpose too.
Darkwolfe, thank you.
I’m content to leave it at that for the time being. Due to the nature and purpose of this site the subject will undoubtedly come up again, and we can pick up the discussion where we left off if it seems convenient. I appreciate your willingness to hear me out. And I’m always ready to have a lively, mutually respectful discussion with those I disagree with on a given issue.
Looking forward to the next go-round.
We NEED to get the government to follow what constitution and amendments we already have. Do you really think they will follow any new amendments when they refuse to follow what already exists? Instead they play off the minds of the majority with hegelian dichotomies. Ex: They PLAY back and forth with abortion or not, with the idea of religious fanatics vs. extremist pro-death leftists. We go back and forth like this ad infinitum.
These are the dichotomist straw men, when the constitution plainly already answers the question. THe right to life liberty, and the pursuit. Nothing less or more. This is where the debate lies, and NOwhere else.
Yet, even when the republicrats (republicans) had a majority and the presidency, one conveniently turned independent, so they couldn’t change abortion legislatively. I don’t believe they ever intend to, the independency of one, was planned in my opinion. Repubs never change anything except general economic policies, and military policies
In almost all republicrat and demopublic debates, the constitution seldom enters the stage, they appeal to you thru all the falsities of rhetoric, and stay far from the strict logic of the constitution. I think my friend had it just right, and many years ago at that. His representative was arguing a point with him, declared that we have a living constitution. My friend replied to the gentleman that this absolutely could not be so. He was asked wht not? He responded; If the constitution was living, sir, I am sure it would march right down here and smack you in your smug face. That, sir is why I know nthe constitution is not a living document
The Electoral College was intended by our Founding Fathers to preserve the ancient Precedent established by the Israelites on the Plains of Encampment
when Levi was in the Midst: also when the thirteen Chieftains of the lost tribes who had settled in Scandinavia held a TING to elect their King; likewise when the Pope is chosen: and this is the reason that when George Washington was likewise elected he was given the title of ~Mr. Precedent.
[With ambiguous placement, a modifier is confusing to a reader because it can refer to two or more words in a sentence.] ~(c) 1999 Prentice-Hall, Inc.
“The Electors…one of whom, at least, shall not be an inhabitant of the same state with themselves…
. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states and a majority of all the states shall be necessary to a choice.” ~Amendment XII.
MAXIMUS HOMO defines: “… new Government, laying its foundation on such principles and organizing its powers in such form …
“~The Declaration of Independence.
As our Founding Fathers envisioned it!
When we speak of a form of government; no one thinks of any external or visible shape, but of the nature and adjustment of the various parts composing the government, and by means of which it is administered. A person, who reads and understands our constitution or organic law of the State, sees therein its form of government. We speak, also, of the form of society in a particular nation; and by this is meant the nature and relation of the several parts composing such society, the nature and arrangement of its social, industrial, commercial, educational, artistic, moral, and religious elements. Again, we speak of the form of a government; and by this we mean the character, connection, order, subordination, etc., of its various functionaries, the mode of their appointment, and their respective duties. ..
When it is said, therefore, that our government is in the human form, the meaning is that it is in human order; that all its parts, or all the innumerable societies of which it consists, are so arranged and adjusted as to express most perfectly the truly human principles which constitute the essential spirit of Life, Liberty and the pursuit of Happiness
.. In other words, the relation, mutual dependence, and intercommunication of the societies composing the whole, and the uses they respectively perform, correspond to those existing among the various organs of the human body and their respective uses. One is a perfect type or representative image of the other body. It should appoint its wisest and best men to preside over its interests, because every one is aiming to subject himself to the government of the highest good and truth. And so the form or order of that community becomes more and more human.
All its corporate acts express more and more faithfully the human thoughts and feelings with which the minds of its individual members are imbued. Such community is in the human form, therefore, just so far as the individual minds composing it are human. The moment one ceases to do its work, or appropriates more that its share of the juices elaborated, or more than it needs to fit it for the performance of its appointed use, that moment comes disease to itself and disease to all the rest. And if it perseveres in this abnormal course, sooner or later death inevitably ensues. Notwithstanding there exists authority and obedience, there is nothing like tyranny on the one hand or slavishness on the other. There must be perfect freedom.
The demise of our republican form of government.
“Our Founding Fathers predicted the inevitable demise of their republican form of government, which is presently upon us:
‘It takes time, observed John Jay, to make Sovereigns of Subjects and for them to realize that the government is their own.'
'The Republic will degenerate into a democracy with the politicians promising largess and the people voting their own self-interest,' quipped Madison.
'The lawyers will get into Congress to manage the Constitution, license paper money and pillage the treasury,' remarked Amos Singletary.
'The Supreme Court judges, ignorant of its historical setting, will be unable to interpret the Constitution and the original intent of its provisions; and there will arise a two-party system, divided along economic interests, leading to deadlock as the public good is disregarded in the conflict of rival parties,” opined Madison. Re: The Federalist Papers, en essentia.