Governor Hickenlooper and Attorney General John Suthers have teamed up to challenge the lawsuit against our Taxpayers Bill of Rights (TABOR). I’ve discussed earlier why this lawsuit isn’t just about bringing down TABOR. It’s about trying to bring down the whole citizen initiative process. To help the cause, the Independence Institute filed an amicus brief (friend of the court) opposing the lawsuit and encouraging dismissal. Much of the content of the amicus comes from Rob Natelson’s research into what the Founders meant when they used the words “republican form of government.” Rob discusses the brief in a blog post he wrote on constitution.i2i.org. Additionally, Rob sat down with one of my minions to record a podcast on the subject. You can find the podcast over on iVoices.org. Editorial page editor of the Colorado Springs Gazette, Wayne Laugesen, read our amicus brief and described it as masterful. Thanks Wayne!
Archive for the 'Constitutional Amendments' Category
I’ve talked a number of times about how we can tackle our federal government’s spending problem. Each time the subject gets brought up, I must make mention of the Constitution’s solution to the problem. Our Constitutional scholar Rob Natelson puts it like this: the Founders envisioned a time when the problem would be Congress itself. So what to do when Congress is out of control and won’t rein in itself? Well then it’s up to the states to take control.
The next logical question is: how do the states take control? Answer: A convention for proposing amendments! The states must come together and address the issue of runaway spending by our runaway Congress. Rob has been talking about this solution for quite some time, but after a couple years of incredibly in-depth scholarship, he’s written his masterpiece for Tennessee Law Review: Proposing Constitutional Amendments By Convention: Rules Governing The Process.
Rob’s article contains the most in-depth look at our Founding era’s historical record on Article V conventions ever put down on paper. I suggest giving it a read if you’d like to become educated on this topic so riddled with fallacies and misconceptions. Additionally, check out this iVoices.org podcast Rob did this morning with my minion. It’s probably the best overview of the subject you could get in around 20 minutes time.
The Legislative Council’s executive committee, consisting of 3 Democrats and 3 Republicans, took a vote the other day on whether to oppose the TABOR lawsuit. You might recall that our Taxpayers Bill of Rights is going to court soon to determine whether it violates the Constitution’s guarantee of a “republican form of government.” As with anything TABOR related, the vote came down 3-3 along party lines. You might be thinking, “so what?” This vote was purely symbolic. It doesn’t mean anything. And you would be right, this vote doesn’t change anything. It is also true that this lawsuit against TABOR is purely symbolic. As I’ve stated before, this lawsuit isn’t about TABOR. It’s about our right to petition our government. What this lawsuit argues is that citizens do not have a right to petition their government and vote on constitutional amendments. Thus, it endangers all of our citizen enacted amendments to our state constitution – not just TABOR. Our resident constitutional scholar Rob Natelson disagrees. He argued in this Colorado Springs Gazette op-ed that the evidence is solidly on the side of petition rights and of TABOR. The Founders would have had no beef with citizens voting on constitutional amendments. In fact, they were quite fond of it in their day. So while this latest effort to undermine TABOR might result is some more public trashing of its good name, it won’t result in anything substantial.
The fiery debates over our national debt, ever expanding undeclared wars, and Obamacare have resurrected a new found interest in Constitutional matters. This is great for us because we happen to have one of the leading scholars on the Constitution in our Independence Institute offices, Senior Fellow in Constitution Studies Rob Natelson. He writes a great blog for us over at constitution.i2i.org and does weekly podcasts with a minion of mine over at iVoices.org.
I’d like to point out his blog post for this week that completely eviscerates the cover article on our Constitution by Richard Stengel in Time Magazine. In it, Rob deconstructs some points Mr. Stengel was trying to make in regards to the meaning of our Constitution. As an expert on the meaning of the Constitution, Rob was able to point out the many flaws in Mr. Stengel’s points. The Time Mag article is instructive as I believe it reflects many people’s thinking about our founding document. As such, Rob wrote an entire book exploding many of the common myths that Mr. Stengel repeats tirelessly in the article. To keep yourself from making many of these popular mistakes, keep following Rob’s work on constitution.i2i.org.
If you’ve ever dreamed of being in the same room as not one, but TWO real life geniuses, then you’ll want to attend our program for the grassroots on Sunday, May 15th, from 1:15 to 5pm at the Red Rocks Community College. Both constitutional law professor Rob Natelson and our Second Amendment expert and constitutional law professor Dave Kopel will be educating the class on how to use our constitution to fight federal overreach. By the time the program is over, you will know the constitutional information you need to restore liberty and constitutional government in America! And maybe have a higher IQ through osmosis.
The program discusses:
* Why the Constitution was adopted and what purpose it serves
* Untruths spread about the Founders and the Founding spread by those who seek to discredit it
* How the Constitution was to be interpreted.
* What key provisions in the Constitution really meant.
* How politicians and courts have destroyed limits on federal power and driven America toward bankruptcy
* How you can use the tools provided by the Constitution to restore the Founders’ vision
* And much more!
Maybe the special interests stacked against our petition rights have finally come around! Maybe they will do something about HB 1326 and revive our petition process…
Using the Constitution’s system of a “convention to propose amendments” is likely the only way we’ll ever get a balanced budget amendment, a federal single-subject rule, or other reforms Congress won’t pass. Opponents of the process, however, try to convince people that a convention to propose amendments is a “constitutional convention” (which it is not) and that it could “run away” (which it almost certainly can’t).
Recently I traveled to Indianapolis to testify before the Indiana legislature. While there, I learned that opponents of an amendments convention are circulating questions about a convention, apparently designed to “stump” proponents.
Frankly, when I read what are supposed to be tough questions, I laughed out loud. All the questions are answered easily if you know the history and law applicable to such a convention.
The author of the questions obviously didn’t. He introduced them with this statement: “No convention has been held since 1787, and after two hundred years that experience has little relevance.”
The statement is ridiculous. Americans have held hundreds, perhaps thousands, of conventions since 1787. They also have amended the Constitution 27 times, and state legislatures have submitted hundreds of applications for an Article V conventions. This and related experience is a valuable source of precedent. And the legal disputes that arose out of this activity comprise a valuable source of decided case law.
But if what the author meant is that no interstate convention has been held since 1787, then the statement is still ridiculous because the Founding Generation’s copious experience with both interstate and intrastate conventions has tremendous constitutional and practical relevance. This is because the language and powers bestowed by Article V carry meanings and incidental powers fixed by Founding-Era custom and law, particularly the law of agency.
[By the way, that is not the sheet's only inaccuracy---another is the old myth that the 1787 convention was a runaway.]
Anyway, here are the 11 questions the author poses, with answers to each. For further information, see my writings, linked on this website. You can supplement them with the leading book on Article V conventions, Russell Caplan’s Constitutional Brinkmanship (Oxford University Press, 1988). Some of the book’s conclusions and language have been superseded, but it remains a valuable antidote to claimed uncertainty.
1. How is the validity of applications from the states to be determined?
A. Initially by Congress, although congressional decisions are subject to judicial review.
2. How specific must the state legislatures be in asking for amendment?
A. The legislatures may apply either for an unrestricted convention or one devoted to particular subject matter. There is no rule as to specificity, other than that the legislatures may not dictate specific wording to the convention.
3. Must all the applications be in identical language?
A. No. It is enough if they identify the same problem(s) or subject-matter(s). However, prudence suggests that state legislatures coordinate with one another.
4. Within what time period must the required number of applications be received?
A. Since adoption of the 27th amendment, it is clear that there is no time period. Because, however, some are still claiming that applications can go “stale,” prudence suggests that a campaign be completed within a decade or so. (The application campaign for direct election of senators took 14 years.
5. Can Congress refuse to call a convention on demand of two-thirds of the states, and if it does, can it be compelled to act by the courts?
A. No, Congress may not refuse, and the courts can compel it to act.
6. Who are the delegates, and how are they to be chosen?
A. Delegates are representatives of their respective state legislatures, and are chosen as state law directs.
7. Can the convention act by a simple majority vote, or would a two-thirds majority be required, as in Congress, for proposing an amendment?
A. The convention acts by a simple majority of the represented states. The convention may, by a simple majority of the represented states, alter that voting rule.
8. How is a convention to be financed, and where does it meet?
A. A convention for proposing amendments is a conclave of state delegates. It therefore is financed by the states. Congress, in the convention call, specifies the initial meeting place. The convention may alter that meeting place.
9. May the convention propose more than one amendment?
A. Yes—but only if they are all within the agenda of the convention, as prescribed by the applying states.
10. Is there a time limit on the proceedings, or can the convention act as a continuing body?
A. There is no fixed time limit—the convention can meet until it decides whether to propose amendments and which ones to propose. But a convention is, by definition, not a continuing body. It has no authority beyond proposing amendments within the subject matter prescribed in the applications, and once that is performed, it must adjourn. Additionally, states may recall and/or replace their delegates at any time.
11. Can controversies between Congress and the convention over its powers be decided by the courts?
A. Controversies over the scope of the convention’s powers may be decided by the courts. However, the states, not Congress, fix the scope of such powers. The most likely area of controversy between Congress and the convention would be if the convention suggests an amendment that Congress believes is outside the convention’s agenda as fixed in the state applications. If (as is proper) Congress then refused to prescribe a “Mode of Ratification” for the suggested amendment, the courts could resolve the dispute.
The Denver Post editorial board has a policy manual, a dusty old thing full of important policy positions to which they strictly adhere. Right after “all tax increases are good,” but before “Pimp transit projects like it is a cure for cancer,” is this tried and true gem, “Whatever side Caldara is on, we’re on the opposite.”
So imagine my surprise when this Denver Post editorial came out this morning. The Post came out in support of me both in my current legal harassment situation and in my serious concern over House Bill 1072. This new bill in the legislature will further amend the already dead petition process here in Colorado. As it stands, only a rich guy with a financial death wish would bring an initiative to the ballot. This bill however, makes things even worse. As lawyer and expert in petition law Shayne Madsen was quoted,
…the bill would provide initiative opponents with additional opportunity to sue, while increasing the already high costs and bureaucratic hurdles for putting a measure on the ballot.
Worse yet, the bill also turns the burden of proof on its head! If anyone were to file a claim against a petitioner asserting fraud of any sort, the burden of proof is on the initiative’s proponents to prove that no fraud took place. Guilty until proven innocent.
And that’s the bottom-line with this new bill HB 1072, and the old bill HB 1326: raising the costs and risks associated with bringing an amendment to the people so that no one, except maybe only the most well-funded, union backed special interests can bring an initiative forward to the people of Colorado.
Update: Word out of the legislature today, HB 1072 passed out of committee today unanimously, with a change to the “burden of proof” section.
So explains my Independence Institute colleague Rob Natelson, on his Our American Constitution blog. Forty-eight of the 55 delegates had instructions which allowed them to go beyond amending the Articles of Confederation.
Rob’s research into early American history has found that constitutional conventions (for a new constitution, or to amending an existing document) had well-established procedures by the time of the Framing. Click here for post that will provide a summary, and to lead to Rob’s extensive analysis of original sources. As Rob explains, constitutional conventions for a balanced budget, or other salutary (in my view) purposes have been blocked in part by fears raised by the John Birch Society that a new convention would run away like the Philadelphia Convention did, or that the procedures of a new convention are completely unclear. To the contrary, the procedures are clear, and neither the Philadelphia Convention nor its early American analogues exceeded their mandate.
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