Re: Article V - an analysis (fwd)

Forwarded message:

> Date: Wed, 25 Nov 1998 15:11:57 -0800
> From: Todd Larason <jtl@molehill.org>
> Subject: Re: Article V - an analysis (fwd)

> On 981125, Jim Choate wrote:
> > Why is this problematic? When the convention was called it was with the
> > express goal of replacing the articles. A tacit a priori admission they were
> > faulty and needed replacement.
> 
> But that wasn't the goal, at least not the stated goal.  The Convention
> was called under the procedures specified in the Articles.  The Convention
> itself decided to change the rules for ratification.

Which is by definition within the powers of such a convention. Their charter
is to come together in order to build a consensus and create from that a
charter for future operations. The litmus test is whether the states are
willing enough to go along with it to actualy do it. They were so the point
was moot. The states called the convention in order to create new proposals
for government, the convention went back to the states with a proposal, the
states looked it over and voted for it. It's important to remember as well
that the original Constitution had to be ratified by all 13 original states
and not simply 3/4 of them. The choice was unanimous.

> Congress specified in both (all) cases.  For the original prohibition
> amendment, they submitted it to state legislatures.  For the repeal amendment, 
> they submitted it to state conventions.

So, however the bill get's to Congress they must specify a method for the
states to enact. Now the question is how long does Congress get? If Congress
sits around and does nothing can it stall long enough that they can kill the
amendment process by their own internal procedures? There is certainly no
time limit imposed by the Constitution so the implication is that Congress
has to wait until the states decide whether that takes a day or a century.
But at the same token there is no implicit time constraint on Congress
either.


    ____________________________________________________________________
 
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At 03:34 PM 11/25/98 -0800, Todd Larason wrote:
>On 981125, Jim Choate wrote:
>> If Congress
>> sits around and does nothing can it stall long enough that they can kill the
>> amendment process by their own internal procedures? 
>
>There's only a time limit because Congress has started specifying one, in the
>same resolution which proposes the amendment and specifies the ratification
>method.  (Exception: in the case of the ERA, I believe they later extended the
>limit).  The power to specify a time limit isn't mentioned in the Constitution 
>as you note, but has also never been tested.

The most recent amendment (27th?) sat around for nearly 200 years
before 3/4 of the states ratified it,  (preventing Congress from 
raising their salaries during their current term.)  
The power to specify a time limit doesn't need separate mention; 
the time limit is either part of the proposed amendment, or it isn't, 
and it's part of the negotiations for getting Congress to pass it.

The more dangerous problem is that people keep suggesting a 
Constitutional Convention, which has basically no limits on its scope
(especially given the one previous precedent, which substantially
increased Federal power beyond the limits of the Articles,
and didn't require unanimous consent to adopt its product,
though the Articles required it for changing them.)
Even if the states _say_ they're limiting their delegation to
specific tasks, that doesn't mean the ConCon won't exceed them,
and if it gets sufficient media/public support, it can get away with it.

Don't expect the 2nd, 9th, or 10th amendments to survive a ConCon at all,
or the 1st to have any meaning resembling its current limited one,
or the 4th or 5th to get by without "except for drugs or other
politically incorrect substances" attached to it, or the 
definitions of rights or powers to resemble what you want.

(There have been some Libertarian proposals to add
"and this time we mean it" to the end of the 9th and 10th,
or to add a period after the 1st's "Congress shall make no law",
but they're not in keeping with the spirit of the age :-)

				Thanks! 
					Bill
Bill Stewart, bill.stewart@pobox.com
PGP Fingerprint D454 E202 CBC8 40BF  3C85 B884 0ABE 4639

On 981125, Jim Choate wrote:
> > > Why is this problematic? 

Whether it's problematic or not depends on your goals.  It gives reason to
doubt that your interpretation of the effects of a Convention called under the 
current constitution would hold, as (as you now say), such a Convention
has the power to change the rules by definition.
 
>It's important to remember as well
> that the original Constitution had to be ratified by all 13 original states
> and not simply 3/4 of them. The choice was unanimous.

It didn't have to be:

Article. VII.

The Ratification of the Conventions of nine States, shall be 
sufficient for the Establishment of this Constitution between the States 
so ratifying the same.


There was a time period (I don't know how long, but certainly no more than
a few months) where some states were operating underthe Constitution and
others were still under the Acts.

> So, however the bill get's to Congress they must specify a method for the
> states to enact. Now the question is how long does Congress get? 

I don't think it specifies, but what has always happened is that the *same
resolution* which proposes the amendment specifies which ratification method
will be used.

> If Congress
> sits around and does nothing can it stall long enough that they can kill the
> amendment process by their own internal procedures? 

There's only a time limit because Congress has started specifying one, in the
same resolution which proposes the amendment and specifies the ratification
method.  (Exception: in the case of the ERA, I believe they later extended the
limit).  The power to specify a time limit isn't mentioned in the Constitution 
as you note, but has also never been tested.
-- 
ICQ UIN: 45940202

Todd Larason wrote:
>> 
>> Why is this problematic? When the convention was called it was with the
>> express goal of replacing the articles. A tacit a priori admission they were
>> faulty and needed replacement.
>
>But that wasn't the goal, at least not the stated goal.  The Convention
>was called under the procedures specified in the Articles.  The Convention
>itself decided to change the rules for ratification.

If you look at the relevent section of the Articles of Confederation,
you will see this is not a problem.

The Articles of Confederation 
Article XIII.

Every State shall abide by the determinations of the United States
in Congress assembled, on all questions which by this Confederation
are submitted to them. And the Articles of this Confederation shall
be inviolably observed by every state, and the union shall be
perpetual; nor shall any alteration at any time hereafter be made
in any of them; unless such alteration be agreed to in a Congress
of the United States, and be afterwards confirmed by the legislatures
of every State.


The convention, the States, and the current Congress did as was
required under Article XIII.

-Doug
www.TheServerFarm.net

On 981126, Douglas L. Peterson wrote:
> The Articles of Confederation 
> Article XIII.
> 
> ... And the Articles of this Confederation shall
> be inviolably observed by every state, and the union shall be
> perpetual; nor shall any alteration at any time hereafter be made
> in any of them; unless such alteration be agreed to in a Congress
> of the United States, and be afterwards confirmed by the legislatures
> of every State.

> The convention, the States, and the current Congress did as was
> required under Article XIII.

The Convention did not.  It produced a document which, by ITS rules, went
into effect after having been ratified by 9 of 13 states, not all 13 as
required by Article XIII.
-- 
ICQ UIN: 55350095