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Date: Wed, 25 Nov 1998 15:34:35 -0800 From: Todd Larason <jtl@molehill.org> Subject: Re: Article V - an analysis (fwd)

On 981125, Jim Choate wrote:

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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.

How? Explain what part of Article V leaves this hole open. Explain the relevance of the operational proceedures used during the transition from the Articles to the current Constitution to the modification of the Constitution itself within the bounds of its own structure? Congress wasn't even involved in that original process because it didn't technicaly exist until after the ratification. Why would a precedence involving state legislatures be found to hold on a national legislature? There is also the issue that the Constitution once duly implimented is the supreme law of the land and it takes precedence over precedence. This is apples and oranges. Bottem line, if 3/4 of the states ratify there isn't anything that keeps it from being law. The most that Congress can say is whether it's a direct vote in the legislature or a vote by convention.

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.

Which is relevant how?

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.

That can't work if the resolution comes from the states. Only Congress has the authority to decide that issue. So the only way a proposed amendment can be placed up for debate and at the same time specify how it is to be voted on at the state level is if it comes from Congress in the first place. A proposal submitted by the states would force the debate of how it was to be decided. Once that was settled it would be passed back to the appropriate state legislature for direct vote or the initiation of a convention if sufficient votes could be found.

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.

I assume your speaking of the prohibition amendments again and their limits (7 years I seem to remember). That raises an interesting point. Suppose that the states submit an amendment proposal, can Congress modify it? I'd say not because of the 10th. If they could then the power of the states to submit amendments would be moot. ____________________________________________________________________ Technology cannot make us other than what we are. James P. Hogan The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------