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January 23, 2009
Firmly-Believed Madness about the Constitution
Mark Twain called it, "getting drunk on someone else’s cork." He was referring to people who get passionately involved in someone else’s proposal, without checking it out.
That has always been a tendency among humans once we learned to live in cities and use language. The coming of the Internet broadened the opportunity for some of us to sow confusion in the minds of others. The latest example concerns the U.S. Constitution.
An article has appeared in several places on the Internet with the arresting title, "SCOTUS: Congress Can Override the Constitution – REALLY!" For the uninitiated, the constitutional buffs on the Net often refer to the U.S. Supreme Court as SCOTUS. If this charge were true, it would certainly justify extraordinary and passionate discussions of the collapse of the Constitution.
But this whole argument is based on a factual misconception about one clause in the Constitution. And this one misunderstanding has lead to hundreds of people getting involved in a discussion about the collapse of the Constitution and all three branches in collusion with each other to allow/cause that result.
Here’s a website address that points to two sources for this article, and discussions back and forth.
I’ll try to give a fair description of where this subject comes from. You can follow the links to make sure I’ve done that.
After long discussion, and several changes of mind, the Constitutional Convention in 1787 in Philadelphia provided two routes to amendment of their work product. One was the familiar one, recommendation of amendments by a two-thirds vote of both the House and Senate, followed by ratification by three-fourths of the state legislatures. Article V of the Constitution allowed an alternative to a vote of the legislatures. That is a vote of Ratification Conventions in three-fourths of the states.
Congress gets to choose the ratification method. They chose that just once, for the repeal of Prohibition. In order that state legislators would avoid the wrath of the Women’s Christian Temperance Union, Congress allowed the voters themselves to elect ratifying delegates who either supported or opposed the end of Prohibition.
This scary article is based on the other method of amendment, a call by two-thirds of the states for a new national Convention, which Congress would be required to convene. Article V says that in that circumstance, Congress "shall" act, which The Federalist says "is mandatory, there is no discretion in that matter." Records of the original Convention show that the second option was put in to deal with the rare but possible possibility that the people might want a change in the Constitution which Congress refused to consider.
Hold that thought, because we’ll revisit the one circumstance where Congress DID refuse to act, and the people forced the issue.
For now, we continue with the article’s passionate argument. The trigger for Congress to be forced to call a new Constitutional Convention is two-thirds of the states, or 34 in all. At all relevant times, there have been more than 40 state calls for a constitutional convention. The fly in the ointment is that there are not 34 states which agree on the purpose of the proposed convention.
All of the present state calls ask for a convention on specific subjects, with a minimum of one restricted to a matter of world government, and 32 restricted to a federal balanced budget amendment. The critical error in the argument is assuming that there’s no such thing as a limited convention, therefore no matter what the existing calls say, they are all general and therefore can be added together.
From decades of experience with constitutional discussions on the Net, the people who start these discussions with fire-breathing articles have usually done a lot of homework, but not enough.
The current one is based on two cases "Walker v. United States, filed in December, 2000 and Walker v. Members of Congress, filed in September, 2004." The claim was that Congress was avoiding its "mandatory duty" to call a convention since more than 34 states had passed some kind of call.
Most of these sky-is-falling articles have the same underlying error: they miss part of the history. Three times, states have called for a new, general convention with all subjects on the table. All three occurred within years of the 1787 Convention, from states which had major concerns about the whole Constitution as written there. In the whole 19th and 20th centuries, ALL of the hundreds of state calls for a new federal convention have been restricted to a single subject.
The original article’s author is apparently unaware that the supreme courts of six states have ruled on the question of whether a state constitutional convention can be limited in subject matter. All six have said yes to that question. The logic of that decision is identical at the state as at the federal level.
Follow me here. There is a principle of law developed in England centuries before the United States came to be. It is also used here. It is the relationship of Principal and Agent. It is that the Agent cannot exercise more authority than the Principal gave him.
In most states, the Principal is the people themselves. The state conventions happen if the people vote for one. If they vote for a general convention, that’s what they get. But if they vote for a limited convention, the delegates to that are Agents, and are limited to what the people voted for.
At the federal level, the power lies with the state legislatures. They are, collectively, the Principal. If a required number of them agree to hold a general convention, that’s what they get, as at Philadelphia. If they agree on a limited convention, the delegates as Agents would be restricted to that subject.
The last item the gloom-and-doom folks have missed is that the eleventh Amendment in the Bill of Rights was added to the US Constitution in 1992. You read that right.
The Bill of Rights began as 17 amendments, drafted by then-Congressman James Madison in 1788 in response to over 200 demands for Amendments that came in from the states during the ratification. The Senate passed only 12 of those Amendments and sent them out for ratification. Items 3 through 12 were promptly accepted. (It is happy coincidence that what is now the First Amendment is the "first" amendment.
Of the other two, one would have restricted House districts to 40,000. Congress would have had to meet in a stadium. But the last one, called the Madison Amendment, continued to get ratifications in the 19th and 20th centuries. In 1992 Congress recognized that 34 states had accepted the now-27th Amendment, which you will find online.
But Congress did more than that. While it accepted all the ratifications of the Madison Amendment, it said that from now on, state actions would have to be reasonably contemporaneous. It set a seven-year rule for state actions under Article V, so that both ratifications and calls for a new convention are stale and invalid beyond seven years.
The Supreme Court had previously ruled on an entirely different matter, that the seven year limitation was "reasonable" since the Constitution is silent on that particular subject. So the final answer to this constitutional disaster article is that ALL the state calls it is based on are void and gone.
This whole subject is one more example that Alexander Pope was right 300 years ago when he wrote this, "A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again." An Essay on Criticism, 1709.
Post Script: Although the new Convention route was never used to completion, it was used to force the 17th Amendment through Congress. Ten times the House passed this Amendment to make the Senators elected by the people. Ten times the Senate killed it without a vote. In the meantime, enough states called for a convention to deal with that precise subject. The Senate then relented and passed the Amendment, which was promptly ratified. But they stuck in a saving clause, that the Amendment "would not affect the tenure of any Senators serving" at the time of ratification.
I promised I’d get back to that subject.
FamilySecurityMatters.org Contributing Editor John Armor practiced in the U.S. Supreme Court for 33 years. He is counsel to the American Civil Rights Union.
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