Re: Article V - an analysis (fwd)
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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. ____________________________________________________________________ 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 --'- --------------------------------------------------------------------
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
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
participants (4)
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Bill Stewart -
Douglas L. Peterson -
Jim Choate -
Todd Larason