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@palsimon Works for me. Sums up thesarcasticsob exactly.
2 months, 4 weeks ago on Conversation @ http://www.governing.com/columns/potomac-chronicle/gov-is-a-constitutional-convention-in-the-works.html
@TheSarcasticSoB You are correct TheSarcasticSoB. It is "too dangerous." Looks like the King was right. I suggest therefore we immediately take steps to void the Constitution as that is what you are suggesting and return ourselves to the rule of England. How do we suggest we begin this? After all in the final analysis all we need do is inform the British we are terminating the terms of the Treaty of Paris so I guess it can be done at any time. By the way do you think we can accomplish this in time to get in on the British holding their own convention to write their own version of a Constitution? This is being discussed now in Britain. Meantime they are holding a convention in Ireland which just about completes the cycle of nearly every nation on earth holding a convention including communist nations, so-called terrorist nations and so forth and none seemed to feel the matter was "too dangerous." All nations seem to have come out for the better--but us, who invented the convention--for us it is too dangerous. Yeah we'd best go back to being just subjects instead of citizens--or maybe someone of us should consider leaving the nation if they don't like its form of government.
3 months ago on Conversation @ http://www.governing.com/columns/potomac-chronicle/gov-is-a-constitutional-convention-in-the-works.html
@John Louis A full and complete response to this thoughtful response could take hours. Suffice to say the courts have ruled on many issues about Article V. For the purposes of this discussion let's assume two facts: (1) the court is not a group of idiots and (2) they can read. Hence, when they decide for example what is the requirement for the proposing body as to quorum and so forth in proposing an amendment and DON'T EXCLUDE FROM THAT CONCLUSION THE CONVENTION then it must be assumed the ruling applies to both proposing bodies. If it does not then the court is obligated to say so which it never has. Thus when the court has ruled on there being additions permitted to the words of the Constitution (which is where all the mischief comes in as people add their own interpretations, i.e., additions) and the court says this is not allowed and it clearly discusses the proposal process in the ruling then no other conclusion is possible if you accept facts (1) and (2). The reason for this is the principle of equal protection under the law found in the 14th Amendment. The court has explicitly stated unless there is a reasonable basis for discrimination there can be no discrimination. Hence, as proposal of amendments is proposal of amendments there is no distinction between Congress and the convention: their tasks are constitutionally identical. Hence any ruling applying to one must apply to the other. The court was given the chance to make such distinction in my two federal lawsuits and choose not to.
As to the people being the source for the Constitution the court has held that view consistently. Indeed it is that view that removes most of the doubt in question because as the court has directly ruled, long before the 14th Amendment that the people, not the states, are sovereign, meaning much of what is suggested the states can do at a convention simply is incorrect.
By the way your final quote paraphrases one of the most important rulings in the convention process. I think you've read this rulings and merely wish to see if I have so I will end here. Professor Levinson and many others have proposed many ideas about a convention as scholarly exercises. All share one common trait: they don't deal with existing court rulings which without fail knocks out their propositions. The quote you paraphrase is the one that does much of that work.
3 months, 2 weeks ago on Conversation @ http://www.governing.com/columns/potomac-chronicle/gov-is-a-constitutional-convention-in-the-works.html
Mr. Kettl makes several points in his column about an Article V Convention. He mentions 600+ applications. The actual figure is now 746 applications from 49 states. They can be read at www.foavc.org. Mr. Kettl's main argument is no one knows anything about the convention or how it is called and so forth. A complete answer in rebuttal would take pages to write. Suffice to say he is incorrect. The Supreme Court in several decisions has answered nearly all questions about a convention. Moreover Mr. Kettl fails to mention that for answers to be found they do not have reside just in Article V. As with all constitutional issues, the entire Constitution must be satisfied and hence must be applied to any question about a convention. The bottom line answer to his objections is the 14th Amendment which mandates equal protection under the law. Hence, whatever is applied to Congress, in so far as the amendment process is concerned, equally applies to the convention. With this constitutional fact established, and the courts have addressed this, all questions about the convention, its process and so forth are already answered.
3 months, 3 weeks ago on Conversation @ http://www.governing.com/columns/potomac-chronicle/gov-is-a-constitutional-convention-in-the-works.html
Since we are sharing articles please read the material I have written also:
5 months, 3 weeks ago on Arizona may be early leader in call for Article V convention of states
Dear Mr. Apicella. I can assure you I've read Article V. It is not true states can call a convention. The Constitution mandates that is power of Congress. However, that power is totally controlled by state applications for a convention call. As to "legislators" (and I am assuming here we are now discussing actually participating in the convention as opposed to applying for a call) they shall have no role. The Constitution forbids their direct participation unless they resign their office of legislator and seeks election like any other citizen. The fact of whether we live in a republic or democracy is irrelevant in this case as under either form of government, the people will elect their delegates. These may be former state legislators...or not. But the people will decide that in an election. Says so in federal law by the way. The fact states had conventions before ratification of the Constitution is again immaterial as those conventions were held under the authority of English law or the Articles of Confederation both of which are no longer valid law in this country. Finally while I agree state legislators do represent the people, this does not automatically qualify them to represent the people in a convention any more than it can be postulated that if Congress elects ratification by convention this means the state legislators become the convention delegates. The process is clear. A separate office mandates a separate election. Otherwise someone in Congress could simply declare he or she is now president (without going through the process of election) because they already represent the people.
The states already have enough applications to cause a convention call. You can read the 746 applications from 49 states at www.foavc.org. One correction to the story. A convention of the states and an Article V Convention are not synonymous. The AVC refers to the convention specified in Article V of the United States Constitution. Despite efforts of supporters to suggest otherwise, there is no convention of the states in the Constitution. Moreover, federal law mandates, and court rulings support, the fact that a convention will be elected by the people, not the state legislatures as members of the group Convention of the States advocate.
@dleeper47 @WesternFreePress @BillWalker
Alright let's deal with this suggestion point by point and this time I will use references. First, that when the states ratify an amendment it's over and the rest is incidental.
Wrong. The Supreme Court expressly ruled in United States v Sprague 282 U.S. 716 (1931) that there are no rules of construction, interpolation or addition permitted in Article V. Hence, what you read is what it is. Period. The court has never had in its entire history a dissenting vote by any justice when dealing with Article V. What you suggest was specifically addressed by the court in Sprague where the plaintiff argued that the proposed repeal of the 18th Amendment should be decided by a vote of the people rather by one of the two modes prescribed by the Constitution. The court emphatically rejected this saying that Article V was carefully laid out by the Founders, clearly understood and no subject to change (quoting here Hawke v Smith, 253 US 221 (1920) by either state or federal courts or legislatures.
Therefore the entire process is not incidental and may not be changed by the states as you suggest. By the way for your reference it was the United States which asserted Article V cannot be changed.
Next what you suggest as to the states holding "meetings." Article I, Section 10, Clause 1 of the Constitution specifically states, "No state shall enter into any treaty, alliance or confederation..." In Section 10, Clause 3, the Constitution specifically forbids states from "entering into any agreement or compact with another state (without the consent of Congress). Moreover in Hawke and several cases the court make it absolutely clear the choice of ratification was up to Congress to make, not the states, Put all together, states cannot do as you suggest as it would be an agreement which must be approved by Congress, violates Article V as Congress would not have chosen the mode of ratification, violates Article V in that neither the two bodies charged with proposal of an amendment would have proposed it and therefore such "ratification" would be unconstitutional.
Further in Farrand Vol. II pages 557 to 559 you'll see that the convention deliberately voted down a early version of Article V that did allow states to propose amendments BUT THIS WAS ABANDONED IN THE CONVENTION GIVING THE SATES INSTEAD THE RIGHT TO APPLY FOR A CONVENTION AND OF COURSE RATIFICATION. See also Vol. II, pages 630-631.
Next until 2000 no one had ever asked Congress to obey the Constitution regarding Article V and only in the last few months has there been request in writing for a formal count of applications. So it is a little premature to say Congress has always refused given the matter is presently before the House Judiciary Committee and the committee has made no comment whatsoever yet. It may be presented with the evidence for the first time in United States history of the actual text of the applications of 34 states, Congress may obey the Constitution. Perhaps not but I suggest we not jump to conclusions...just yet. See www.foavc.org/reference/file49.pdf, same reference for file 50 and file 51.
Next the case has already been brought to the Supreme Court in 2004 with the court ruling in 2006. It denied cert but not before the government conceded for the first time in U.S. history what the terms and conditions of a convention call. The attorney of record for the United States Congress who were sued both as individuals and in their professional capacities, agreed that as a matter of fact and law the following was true: (See FOAVC, FAQ section, Question 9.1) A convention call was based on a simple numeric count of applying states with no terms or conditions (thus affirming the earlier Sprague ruling). Such terms and conditions would include of course extemporaneousness, same amendment subject (rejected by the Founders in the 1787 convention) and so forth. The counsel agreed the call was peremptory upon Congress meaning no excuse could offered whatsoever by Congress not to call (see Federalist 85, Hamilton generally) That sufficient number of applications had been submitted by the states to cause a convention call (See FOAVC list of 746 applications from 49 states. At the time of the lawsuit the known number was 567 applications from 49 states. That it was a federal crime for Congress to refuse to obey the Constitution and not call when the states had applied as it constituted a mental reservation by the members of Congress (See generally oath of office laws, specifically 5 U.S.C. 7311 advocating overthrow of constitutional form of government. See also Executive Order 10450 (a)(4) a criminal act to attempt to alter the constitutional form of government by unconstitutional means. (Refusing to call when mandated alters the constitutional form of government which mandates a call when two thirds...you know the rest).
My favorite amendment for your information is an IRR asked for by Wisconsin in 1929. I believe that much of the issues of today will be solved when that is added the Constitution. IRR for those who may not know the term stands for initiative, referendum, recall. Yes, I've been involved in this for over 20 years and by far (unless someone is lurking out there I've never heard of) written more on the subject than probably anyone else. BTW FOAVC does not advocate amendments. We are non-partisan so there is no FOAVC term limits proposal. Remember you asked for MY favorite amendment. FOAVC has none.
Finally, the court ruled in Hawke that when states operate in the amendment process they do so under the authority of the federal constitution, not state constitutions. Hence, the states lack the authority to even start what you suggest.
11 months, 1 week ago on Mark Levin, Constitution Article V, and the “Liberty Amendments”
@dleeper47 I forgot to add one last important fact I should have mentioned earlier. The only group that is paying attention to FOAVC is the government. It will base its decision on the record of applications gathered by FOAVC. Court rulings specifically discussing the convention will be its only source of court input and were brought by a member of FOAVC. The main source cited by the CRS in discussing the article V convention is FOAVC. A criminal complaint lodged against members of Congress referred to the FBI for investigation, stems from FOAVC material. The arguments debunking the myths about the convention were, for the most part, advanced by members of FOAVC. While others have talked about getting a convention we've been at work getting one.
So while Mr. Levin may chose to not inform his readers/listeners about FOAVC, the government know about us and is reacting. The simple fact is this--if Mr. Levin were tomorrow mention FOAVC and the facts I have mentioned in these posts together with online references and rev his people up as I have heard him do, we could have a convention call inside of a week. Instead he cites Robert Natelson who wants to cut the people out of the process and arrest them if they attempt to represent those people against the special interests.
So Mr. Levin is going to have to make a decision soon because no way will all those million people not start checking the Internet and finding FOAVC. He's either going to start telling his people the full truth, watch events unfold that FOAVC has caused or face the reality of answering a lot of questions why he didn't tell all when he should have.
Mr. Levin note. My offer still stands. You want the full truth as you often say then bring me on and I'll tell it. I fully support your efforts to bring this issue to light. I just want to see ALL is brought to light.
If Mr. Levin was serious about a convention he would have taken me up on my asking him to be a guest and he would be informing people about the various points I have presented, most notably the fact the states have already applied in sufficient number to cause a convention call. The entire argument changes with this single fact of public record. The conversation is not about "beginning" but as Levin so far as urged, but "finishing" as your most direct question next very clearly and correctly asks. How do we force Congress to obey the law. Frankly, that should have been the focus of the conversation from the very beginning of this issue, raised some 20 years ago and even further than that by some people.
As I've indicated right now, in the House Judiciary Committee, a decision is being made whether to obey the Constitution or not. Basically two Americans are facing down Congress and there are few if anyone else helping. The odds do not favor Mr. Marks and I and once Congress officially determines it is not going to set a method for counting applications, which is why a convention has not been held, not because the applications don't match, or are not timely or crap like that.
So answer your question directly have the million or so listeners call Congress and raise hell. That should go a long way toward the goal. As to the value of his group. If they know the facts and so far Levin is not telling them the facts, about the number of applications, about the fact most of his proposed amendments have already been asked for by the states, about Robert Natelson who he seems to suggest is an "expert" on the convention but two years ago was asking me to explain it to him in emails I still have and so forth. I won't even discuss, though I have in great length the proposals of Natelson starting with his brilliant idea to cut the American people completely out of the convention system and arrest any delegate who attempts to do anything at the convention other than what he directed to do by the state legislature (read that as the special interests who control the legislature). I have written articles about this. If you want to read them go to www.foavc.org, look on the front page and near the bottom is reference material written by me. Take your pick of over 50 articles on the subject of a convention.
If these people go as I believe Levin will direct them, then they will set about trying to get his proposed amendments asked for by the states meaning more applications submitted which won't even be counted by Congress. In short they will achieve nothing but buying his book. It's not a matter of being a friend or enemy of FOAVC. It's a matter of getting a convention. To do that means putting pressure on Congress and right now Levin is not urging that. I've seen this before and in the end those who simply go for more applications hang around for awhile and finally run out of steam never realizing that the goal has already been won and all they had to do was instead of wasting time trying to get applications was put pressure on Congress and that in turn would get what they desired--a chance to have their propose amendment actually get proposed.
If you want to put pressure on Congress then tell everybody to call the House Judiciary Committee and tell them to act to count the applications submitted in the Dan Marks letter. He sent in 42. All they have to do is count 34 of them.
THEN once Congress counts, it must call. THEN Mr. Levin's book can be discussed along with all the other already submitted applications and we can get about the national discussion he says he wants. What bothers me is Mr. Levin is wasting a golden, historic moment and I'm not trying to make him an enemy--I'm only asking him to tell the people the truth--all of it, not just what sells his book.
For clarity. In the post just made I meant to say, "...thus far I believe he has not actually come up with one original amendment subject..."
Yes, and this brings up a very serious point. For whatever purpose Mark Levin is deliberately ignoring the public record and making it sound like nobody has ever done anything on this issue before he suddenly "discovered" it. While I am not stating this emphatically, judging by his comments thus far I believe he has actually come up with one original amendment subject--everything he has discussed that I've heard on his program the states have already applied for, maybe not in exact language as his, but certainly in intent and meaning. It is not plagiarism in the classic sense but in my mind pretty damn close UNLESS in the actual text of his book which we've not seen yet, he then describes the history of the issue and in that text mentions such and such states have submitted such and such applications on this issue to Congress in the past. Then all he is doing is presenting his version of the matter all the while acknowledging the true authorship of his so-called amendments.
As to Red states versus Blue states. Take time to actually read the amendment proposals. It is the entire conservative agenda, from social to economic, waiting to become part of the Constitution. The reason it has not occurred, beyond Congress opposing it, is the John Birch Society who have lied for years about a convention and made conservatives thus oppose their own agenda. As hard as it sounds? All it's going to take is for conservatives to tell the JBS to go to hell as they should when the realize how that organization has screwed them, and then reach for the phone to protest to their member of Congress to make him or her follow the Constitution. Believe me, when I say this: they know about this so don't buy into the fantasy that they will try to use, the same one Levin is using: that they never heard about this so maybe they should "begin" to study it, meaning check back in a hundred years and we'll see.
You can view the applications at www.foavc.org. BTW if Congress did delay this another hundred years you are looking at, based on the current rate of submissions, some 1500 applications from the states. Hardly starting "beginning". Right now there is 746 from 49 states.
@SteveNDallas @BillWalker @WesternFreePress A totally reasonable possibility. The producer did say he would contact me if he was interested. I assume such gag rule would apply equally to him. So, as they say, time will tell. Appreciate your perspective.
11 months, 3 weeks ago on Mark Levin, Constitution Article V, and the “Liberty Amendments”
Dead serious answer. I've asked the producer of the Mark Levin program to let me be a guest on Mark's program. The reason? His audience is large enough to start the political pressure on Congress necessary to break this wide open. Seriously, get Mr. Levin to have me on his program so people know the truth about this. I raised several points with the producer in my email to him any one of which Mark Levin should be chopping at the bit to broadcast. To date, no response whatsoever from the producer or Mark Levin. Time for being subtle is over--too much at stake now. I need to get on that program or one like it. Mark Levin has said he want to "start" a national discussion. I'm telling you the real facts show this discussion is about to "conclude." The people must and need to know the real facts and right now Levin is not telling them either because he is not aware of them, which I doubt, or even he is afraid to let people know the real truth.
Second, many things are going on right now in Congress and about Congress which is causing an uproar. Surprisingly few people involved to cause this. Still the more the merrier would be nice. After all, why should only a few of us have all the fun of making Congress sweat? This issue is going to come to head by mid-fall one way or another. We should know for example the actual official position of the senate within a few short weeks. After that comes the Sword of Alexander...risky but constitutional. It will resolve the issue, one way or another.
In sum, get more people involved asking CONGRESS the key question--why do you Mr. Member of Congress support disobeying the Constitution in direct violation of your oath of office and what do you intend to do about it? Until Congress is made to obey getting more applications or discussing what amendments should be passed accomplishes nothing. It is past time talking--now is time for action. I hope this answers your question.
Just a couple of comments. First of all to Mr. EC Graf. 39 states have already asked for repeal of the 16th Amendment. You can read the 746 applications from 49 states at www.foavc.org. Most of what Mr. Levin has proposed in his book have already been asked for by the states, such as term limits for instance (30 states). As to how the applications are counted, Miket has it exactly right. The states ask for a convention, not an amendment. The convention is controlled however because all the convention can do is propose. The states still have to ratify by three fourth vote meaning even if two thirds of the states support a proposal, it still takes at least 25 percent more votes in ratification to assure passage. By the way for those going to the FOAVC website and reading the applications be sure to read the response by the state of Delaware to the application by Georgia in 1832. It explains who exactly changes or alters the Constitution perfectly.
Now as to the big question. Why no convention call when the states have applied in proper number to require one. The reason is Congress holds it does not have to obey the Constitution in this regard and has never consented to do so. Therefore it doesn't have. You can read the entire story at www.foavc.org/reference/file49.pdf . To sum it briefly Congress has never consented to counting the applications and the courts have ruled it is a political question for them to determine. Hence, no count, no call. Simple.
The author fails to acknowledge the obvious. First, that he is discussing nullification OF LAW. Hence the issue is about law. For his information, judges have had the "guts" to nullify laws federally since 1804 and in some states regarding state law before then. As to having "permission" it's called the Constitution. The question the author ignores is whether the Constitution permits what he advocates and it does not. It clearly states in the Constitution that it is supreme law and that all state officials are bound to its terms. It clearly states in the Tenth Amendment that those authorities assigned the states are the states and those assigned the federal government are the federal government. Hence, "nullification" of federal laws is a FEDERAL matter, not state.
Besides the author fails to explain or even quote a portion of the Constitution, let alone a judge's ruling (he just says "we don't need stinking judges" presumably because he can't find any other method or means to explain their inconvenience to his "theory") that supports him. If even one judge had ever ruled in his favor he'd be all over it, meaning not even state judges have supported this. Most importantly however to his example of Kentucky is the fact the matter was finally settled in court by judges.
Now as to his comment regarding my pointing out nullification was applied for in 1832. First, I pointed that out because many in nullification think it is some new idea and it is not. Second, the fact it was applied for as I have said indicates those supporting it, who originated it, realized and acknowledge it is a state authority which must be granted to be legal and that means getting an amendment.
Now as to his assumption a convention is far off and the feds will not do it. The difference between nullification and a convention constitutionally is this: nullification puts those who advocate it against judges, the law, the Constitution and the feds giving them the advantage. A convention does the exact opposite. Unlike nullification that cannot be explained or justified by reference to a constitutional clause, Article V mandates a convention and thus the law, the judges etc. have to view refusal, that is to say, nullification by the feds as a violation of the law which it is.
He favors nullification yet says he doesn't think a convention will work. So, in effect, he supports the federal government doing the very thing he himself supports, nullification of provisions of the Constitution. The only difference between him and the "stinking judges" and feds he talks about is not whether the Constitution is nullified but which parts. In reality therefore there is no difference between him and those he criticizes.
2 years ago on Judges? We Don't Need No Stinking Judges
I'm sure all have read the decisions of the courts at http://en.wikipedia.org/wiki/Nullification_(U.S._Constitution) so I won't repeat them here. Suffice to say this: the fact the states have submitted applications for a convention proposal of an amendment pretty much settles the question of whether the matter is constitutional. If it were constitutional for a state to nullify a federal statute on its own authority then some court would have recognized this. None have. Thus the states themselves have recognized an amendment is required. The conclusion is obvious: the authority does not exist meaning the action is currently unconstitutional.
As to the state court ruling such an act is constitutional, that is also illogical. The state court, by the terms of all state constitutions, only is granted power by the state constitution meaning by its own terms it can only address state issues. The issue of nullification is related to federal law and therefore the state constitution does not apply because not even the state constitution allows for any state court to make a ruling in another state let alone in all of them. In effect, nullification asks that a single state court or state have the authority to make a ruling in the rest of the states assigning itself the authority to become a federal government unto itself because that state is demanding it and it alone can determine the validity of a law, not the federal government which is expressly assigned the task.
In sum, it is not asking the wolf about the sheep pen. It is about one of the sheep eating the rest. Oh yeah and by the way in certain cases the federal courts have accepted state arguments that federal law is not applicable in a state and thus declared it unconstitutional. But as the Wiki article points out that is not what nullification advocates mean. They refer to the unilateral authority of a state to declare federal laws void.
2 years ago on Setting Things Straight on Nullification
The author holds an Article V Convention would do no good in his argument for nullification. He states others who hold nullification is unconstitutional are wrong yet he provides no proof where any judge has ever ruled the states have such authority. Obviously therefore for nullification to be constitutional as he urges, it must be by amendment. Given an Article V Convention has had the issue on its agenda since 1832, the oldest such amendment issue in United States history clearly an Article V Convention that favorably found and proposed nullification as an amendment "would do the trick." Therefore his conclusion is false. Obviously he also chooses to ignore or is not aware of the fact that over 700 applications from 49 states already exist for a convention call. The Constitution mandates a call when 34 states submit 34 applications. Obviously the states do not believe as him, that a convention is a fantasy. Otherwise they would not have submitted the applications. You can read the applications at www.foavc.org
While I have no comment regarding most of the material presented, I simply will observe what Mr. Natelson ignores. He asserts an Article V Convention can be limited (presumably by the states and/or Congress). He has never explained and refuses to address in any of his writings the simple fact that Article V allows both Congress and convention to propose "amendments" rather than "amendment." Obviously, if authorized to propose "amendments" this means the body in question cannot be limited to a specific subject or even subjects but has the power and authority to address as many issues as it chooses. Equally important and just as ignored by Mr. Natelson is the fact the states have the authority to reject this proposals, however many, in the ratification process. If by limited, he is referring to this power, then he is correct. If by limited, he is referring to predetermination of subject before a convention, then he is incorrect. As the law of the land was different before the Constitution was enacted, his references to events that took place then have no bearing on our present law of the land anymore than enactments of English law at that time period would have on our present-day Constitution.
2 years, 4 months ago on The Great Forgetting