Saturday, April 3, 2010

DEVILS AND DETAILS

Ideas that sound wonderful when painted with a broad brush often wind up on the cutting room floor, hacked apart in the effort to solve real or imagined logistical problems.

The devil, they say, is in the details.

I got to thinking about that while reading an excellent article in the Wall Street Journal last Thursday. Written by James LeMunyon, a member of the Virginia House of Delegates, the article made a strong case for the calling of a convention under Article V of the United States Constitution.

Mr. LeMunyun skillfully debunked the hysterical cries, long emanating from the John Birch Society on the right and liberal law professors on the left, that such an effort might produce a “run away convention” which, they claim, could even repeal the Bill of Rights.

Those fears, trumped up and trumpeted by people who expect the Supreme Court to amend the constitution at every term, and who believe they have more chance of influencing the court than controlling a convention, have made the task of true constitutional reformers a rocky one.

The truth, of course, is that no proposed amendment becomes part of our constitution unless and until it is ratified by three fourths of the states. Thirty-eight state legislatures would include at least 75 chambers of elected representatives or senators.

The notion that there is any real possibility that there would ever be that kind of consensus to repeal the Bill of Rights is patently preposterous.

The only reason the “run away convention” battle cry gets any traction is because so few Americans know anything about the Article V convention; why it was put in the constitution, what it does and how it would work.

One of the most vocal opponents of an Article V convention is conservative gadfly Phyllis Schlafly. In June of 1988, answering her inquiry, Chief Justice Warren Burger wrote that he considered a convention to be a grand waste of time.

Curiously, Schlafly, who excoriates activist judges, failed to realize that Burger, as Chief Justice, was simply defending the power of his court to rewrite the constitution. Of course he didn’t want a convention. The Supreme Court is part of the federal establishment. And they don’t want people talking about term limits for justices, either.

Schlafly is still writing in opposition, even as the convention movement is starting to take hold around the country. She warns that the big states would control a convention and small states “would be irrelevant.” That’s a strange argument. The Article V process gives no advantage to big states. Quite the opposite, both the calling of the convention by two thirds of the states,and the ratifying of amendments by three fourths of the states, are specifically state by state votes, which make Delaware or Wyoming the equal of California or New York.

Burger was right about one thing, however. Nobody can set the convention’s agenda. Not Congress, not the state legislatures. The constitution says the convention is for proposing amendments. That’s plural. It means that the convention sets its own agenda, decides what amendments to propose.

Article V is clear. When two thirds of the state legislatures demand it, the Congress must call the convention. The logic of that requirement is pretty obvious. If it takes 34 states to call a convention, it must take 34 states to hold a convention. Without a quorum, the convention could not function.

Convention delegates would not be federal officers. They would be selected as provided by law within each state. They would represent their states, and be answerable to their state legislatures.

Just as it was in Philadelphia in 1787.

There was no need then, and there is no need now to concoct a spider web of rules, regulations, and provisos before calling a convention.

Those who insist on debating the details are usually just looking for devils.

6 comments:

  1. What are some of the amendments that you feel are needed?

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  2. I must respectfully disagree with Tom on one point. Convention delegates are federal officers. The courts have repeatedly stated that when the states are involved with the amendatory process, they are operating under the federal constitution, not their own constitutions. Therefore, as that constitution mandates an oath of office and clearly Article V is only part of the Constitution, it follows its delegates are under the federal Constitution rules which makes them federal officers.

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  3. How about this for starters:

    All bills in Congress shall be written in the English language; shall consist of not more than 3,000 words; shall address only one subject which shall be stated in the title; and shall not become law unless all members voting in favor shall certify that they have read the bill and understand it.

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  4. Bill:
    Let's agree to disagree on this one. The convention is a convention of the states and the delegates take their marching orders from the states. I wouldn't want the Congress to be paying them and /or telling them what to do.

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  5. The most likely catalyst for a convention will be the Defense of Marriage, not the desire for better government. It will come when the Supreme Court affirms or refuses to hear the Ninth Circuit concurrence to the expected decision overturning Proposition 8. The people coming to the party will be colored by that issue and issues seen as related, like abortion. If they package the amendment to include a judicial restraint section with the DOMA section it could do real damage to the cause of equal protection under law - especially when equal protection is used to overturn state action.

    This is probably the thorniest issue in our republic, which is not a democracy (and should not be) because of it. Madison included in his 17th Article of the Bill of Rights a provision gauranteeing speech, press and conscience against the action of state government, which the Senate naturally rejected and which Madison did not scuttle the entire package to insist on. Victor's justice led to it's enactment in the 14th Amendment - and it is largely working as Fessenden and Madison intended it would.

    I would be leary of any action which would dilute or overturn this check on mob rule at the state level and will argue such if the online convention begins to operate.

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