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.


Thursday, October 16, 2014

Forward into the Past -- Part I

Having mediated on the State of the Union vis-a-vis my duty as a Citizen, I have concluded that the first three Articles of that most sacred social compact have now been preverted beyond all redemption.  Article I – “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” has lost its original intent to the mean money politics of today which make a mockery of balancing the concerns of the States – through the originally set state legislative elected Senators – and those of the people – one representative per 30,000 citizens to now one representative per 800,000 citizens.  Hence, no succor from that quarter is likely or possible given the entrenched money interests controlling both houses.

Likewise, Article II – “The executive power shall be vested in a President of the United States of America” – has created a monarchy in which the President rules by the divine-right-of-kings without any accountability for his actions.  Indeed, this President mocks the public which elected him by refusing to reveal his basic identity records.

Last, the final bulwark of liberty which is Article III – “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” – has been elevated to an un-accountable super-legislature ruling by decree and refusing to allow challenges to the excesses of the first two branches of the government.

Which brings me to the last resort envisioned by our founding fathers when they crafted this sublime document which rules our lives: Article V (Article IV only concerns relations between the states and thus has no teeth in this matter). Article V states, parsed to eliminate the Congressionally-proposed amendment process which I deem impossible, reads: 
“The Congress . . . 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, 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 . . .”
Here, to my mind, resides the sole salvation of the Union which has brought more peace and prosperity to this Planet than any other social compact.

As I commence my investigation of the interpretation of the meaning and intent of Article V, I am compelled to begin at the Constitutional Convention of 1787. Indeed, this Constitutional Convention is the only source of construction as there has been no direct judicial or legislative action in this matter since 1787.  

And it is there that my journey in and through time begins . . .