Archive for the 'U.S. Constitution' Category

The Lamp of Experience: Constitutional Amendments Work

Posted by on Mar 09 2014 | Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, First Amendment, Fourth Amendment, Freedom of Speech, History, Natelson Rob', Rob Natelson, U.S. Constitution

(This article originally appeared in the American Thinker.)

Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.

The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court. Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions. Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery. (Yes, some of them really said that.)

The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.

The “too much” line, however, has been losing its persuasiveness. New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.

Hence the shift to the “too little” argument. Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.

Opponents will soon find their new position even less defensible than the old. This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.

* * * *

The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable. They saw the amendment mechanism as a way to:

* correct drafting errors;
* resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
* respond to changed conditions, and
* correct and forestall governmental abuse.

The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons. Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect. Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.

Following are some examples:

Correcting drafting errors

Although the Framers were very great people, they still were human, and they occasionally erred. Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President. They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.

The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes. The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency. (My reference to a particular amendment does not mean I agree with every provision in it.)

Both the Twelfth and Twenty-Fifth Amendments are in full effect today.

Resolving constitutional disputes and overruling the Supreme Court

The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation. The amendment process was a way of resolving interpretative disputes.

The founding generation employed it for this purpose just seven years after the Constitution came into effect. In Chisholm v. Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts. The Eleventh Amendment reversed that decision.

In 1857, the Court issued Dred Scott v. Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans. The Citizenship Clause of the Fourteenth Amendment reversed that case.

In the 1970, the Court decided Oregon v. Mitchell, whose misinterpretation of the Constitution created a national election law mess. A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.

All these Amendments are in full effect today, and fully respected by the courts. Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.

Responding to Changed Conditions

The Twentieth Amendment is the most obvious example of a response to changed conditions. Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.

Other amendments as well were wholly or partially triggered by changed conditions. The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters. But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.

Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness. When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics. During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible. Without these changes, I doubt the Nineteenth Amendment would have been adopted.

Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.

Correcting and forestalling government abuse

Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V. Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged. Before looking at the problems, however, let’s look at some successes:

* We adopted the Thirteenth, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to correct state abuses of power. All of these are in substantially full effect.

* In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it. It limits congressional pay raises, although some would say not enough.

* In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms. Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.

Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching. I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either. But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.

In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption. The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth. Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.

What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years. No reasonable person would classify 150 years of effect as anything but a stellar political success. Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.

“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said. “I know of no way of judging of the future but by the past.”

In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.

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A New Triumph for the Right to Keep and Bear Arms (and for II’s Dave Kopel)

Posted by on Feb 14 2014 | Constitutional History, Constitutional Law, Dave Kopel, guns, Kopel Dave, Natelson Rob', Rob Natelson, Second Amendment, U.S. Constitution

A federal court of appeals has just vindicated the Second Amendment right to keep and bear arms in a big way. And II’s own Dave Kopel was largely responsible.

California denied citizens the right to carry firearms outside their homes, unless they obtained a concealed weapons permit. But to get such a permit, citizens had to demonstrate “good cause”—and fear for one’s personal safety was not sufficient to show “good cause.” The effect of the statute was to allow the local sheriff to deny the right to bear arms to all but a favored few.

On February 13, the U.S. Court of Appeals for the Ninth Circuit (the largest of the nation’s federal court of appeals districts) issued Peruta v. County of San Diego. It held that the California statute violated the Second Amendment. In doing so, the court cited one of Dave Kopel’s articles. But that citation went nowhere near showing the extent of his influence.

To clarify the historical understanding of the term “bear arms,” the Court spent much of its opinion citing and discussing obscure 19th century cases and commentaries on the right to keep and bear arms. It was Dave Kopel who first re-introduced these materials to public notice.

In 1998, Dave wrote an article called The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev 1359. This was a massive compendium of cases, commentaries, and other materials. (By “massive,” I mean 188 pages, roughly three times the size of the typical law journal article.)

This article placed into the legal databases for the first time the full story of how the public viewed the Second Amendment during the century after the Constitution was ratified. By collecting and publishing this material, Dave made the collection readily accessible to later commentators, who built on his work. He also thereby made this material available to the courts.

The Court of Appeals cited Dave’s article in Peruta, but didn’t fully explain how that contribution made possible much of the later work that the court also cited. Pioneers don’t always get the credit they deserve.

This incident is only the latest example of how II, although a Colorado think tank, also advances freedom nationally and internationally.

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Bennett-Burr “Bipartisanship” = Yet Another Federal Power Grab

Posted by on Jan 01 2014 | congress, Constitutional History, Constitutional Law, Economics, federalism, Growth of Government, Health Care, Natelson Rob', obamacare, Op-eds, Rob Natelson, supreme court, Tenth Amendment, U.S. Constitution

When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.

Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.

You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,” etc., etc.

As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”

The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.) Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.

The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)

Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:

Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).

At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:

Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).

The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.

The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.

Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.

“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.

But were you?

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How a Conspiracy Cracked a Monopoly

Posted by on Dec 01 2013 | Constitutional Law, Constitutional Theory, federalism, Health Care, health control law, Individual Mandate, Internet, Law schools, Legal professor, Natelson Rob', obamacare, Popular Constitutionalism, Rob Natelson, Spending Clause, supreme court, Taxing and Spending Clause, Tenth Amendment, U.S. Constitution

Anyone interested in the constitutional debate over the “Affordable Care Act” should pick up a copy of the new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case.

This “conspiracy” was not a political plot or an illegal combination. Rather, it is one of the nation’s two top constitutional law websites—a blog called the Volokh Conspiracy, founded by UCLA law professor Gene Volokh.

The book is about more than constitutional arguments over Obamacare. It is also about the cracking of a monopoly (or more precisely an oligopoly): the grip on constitutional discourse by a relatively small, and overwhelmingly liberal, cohort of professors who teach at certain elite law schools. These schools include the University of Michigan, Columbia, the University of Chicago—and most notably Harvard and Yale.

Faculty at elite law schools tend to dominate constitutional discourse for a number of reasons. Their prestige attracts a disproportionate amount of legal talent—bright students who later take influential positions as judges, advocates, and policymakers. (Disclosure: I was admitted to several of these institutions, but nevertheless elected to attend Cornell Law School, which is considered very good but not in the “top ten.”) The mainstream media seeks out these professors, largely to the exclusion of other legal experts.

The elite professors also dominate, indirectly, the highly influential law journals published by their own law schools. These journals are edited by law students, who lack the knowledge necessary to measure the quality of a submitted article. Hence, in deciding whether to publish a submission they often rely on the attitudes of their own faculty and/or where the article’s author teaches or attended law school. My own publication career offers two (negative) illustrations of the monopoly’s methods: (1) As a student I resigned from from my own law review in disgust because the editorial board, in imitation of the elite journals, was running the review with a leftist agenda, and (2) as a law professor, I saw all my earlier constitutional articles—including those that ultimately proved most influential—uniformly rejected by the Harvard-Yale axis.

When the Obamacare law was first challenged in court, the Harvard-Yale axis pronounced it “obviously” constitutional. The six authors of this book dared to disagree, and most of the book consists of their postings. In addition to the Independence Institute’s own Dave Kopel, the authors include five full-time law professors, none of whom work at Harvard or Yale. They are Randy Barnett of Georgetown, Jonathan Adler of Case Western, David Bernstein and Ilya Somin of George Mason, and Orin Kerr of George Washington University. All lean libertarian except Kerr; his dissents add spice to the discussion.

Of course, these authors ultimately were vindicated. The Supreme Court’s decision to uphold the individual insurance mandate as a “tax” was a 5-4 squeaker. The Court also held that the mandate was outside the Commerce Clause and the Necessary and Proper Clause, and that the Obamacare Medicaid expansion was partly unconstitutional. As you make your way through the book, you can see how the winning arguments evolved. My favorite was the realization that the Supreme Court’s “substantial effects” test is a (mis-) application not of the Commerce Clause but of the Necessary and Proper Clause.

At the end of the volume is a section called “Postscript and Concluding Thoughts.” It encompasses six original essays in which the authors discuss the Obamacare case and its outcome. Probably the longest of these is Dave Kopel’s. I personally found it most interesting because it provides historical context and tells the story of the Independence Institute’s participation in the case.

A Conspiracy Against Obamacare is published by Palgrave MacMillan and edited by the Cato Institute’s Trever Burrus. Paul Clement, the former U.S. Solicitor General who argued the case against Obamacare in the Supreme Court, has written an engaging Foreward.

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After the election: What now?

Posted by on Nov 09 2012 | Commerce Clause, congress, Constitutional Amendments, Constitutional History, Constitutional Law, Growth of Government, Health Care, health control law, obama, obamacare, Presidency, Tenth Amendment, U.S. Constitution, U.S. Constitution

The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.

The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.

There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.

Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.

Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.

The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.

This provision was designed explicitly to enable the states to bypass federal politicians.

Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.

Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.

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The Constitution: Does the Necessary and Proper Clause Grant “Broad Authority” to Congress? Actually, None at All

Posted by on May 18 2011 | Commerce Clause, Constitutional History, Constitutional Law, federalism, Health Care, health control law, Necessary and Proper, obamacare, Originalism, PPC, Tenth Amendment, U.S. Constitution, U.S. Constitution

Probably no part of the Constitution has been so misunderstood as the Necessary and Proper Clause, which is located at Article I, Section 8, Clause 18. The Necessary and Proper Clause has been called both an “elastic clause” and a “sweeping clause,” and many have claimed it grants vast power to Congress. For example, a recent Supreme Court case, United States v. Comstock, stated that the “Necessary and Proper Clause grants Congress broad authority to enact federal legislation.”

In fact, most federal regulations today are justified by the Necessary and Proper Clause. They are said to be within Congress’s Interstate Commerce Power— but within not the core Commerce Clause (“The Congress shall have Power . . . To regulate Commerce . . . among the several States”). Rather, they are said to be supported by the accompanying authority to “make all Laws which shall be necessary and proper for carrying into Execution” the power to regulate commerce.

Now, here’s the irony of the situation: Far from granting “broad authority” to Congress, the truth is that Necessary and Proper Clause grants no power at all. It is placed at the end of Article I, Section 8 as an explanation—that is, a “recital.” A recital is a passage in a legal document that has no substantive legal effect, but serves to inform the reader of assumptions or facts behind the document. Another example of a recital in the Constitution is the Preamble.

In recent years, several constitutional scholars have investigated the true meaning of the Clause, and have worked to correct the record. The process began with an article written by Professor Gary L. Lawson and Patricia B. Granger: The Proper Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267 (1994). It focused on the meaning of “proper.” A decade later, I delved into the historical record. I found that wording of this kind was extremely common in eighteenth-century documents granting power from one person to another. I also found the courts had issued cases interpreting this language, and that the Founders had adopted the courts’ interpretation. See articles here and here.

Finally, Professors Lawson and I teamed up with two other noted scholars, Geoff Miller, and Guy Seidman, and wrote a book on the subject. (We all have differing political views, by the way.) The book is called The Origins of the Necessary and Proper Clause, and it was published last year by Cambridge University Press.

Here’s what we found:

* The Clause is a mere recital. It informs the reader how to interpret congressional authority. It does not grant any power.

* The term “necessary” tells the reader that congressional authority is interpreted according to the intent behind the document, rather than very strictly (as the Articles of Confederation required).

* The Clause does this by telling the reader that the legal “doctrine of incidental powers” applies to the Constitution. This means that Congress can regulate certain activities outside the strict reading of its powers, but ONLY IF this ancillary regulation is (1) subordinate to an express power, and (2) a customary or necessary way of carrying out the express power. For example, in regulating commerce, Congress can require accurate labels on goods to be shipped in interstate commerce. But Congress cannot regulate the entire manufacturing process.

* The word “proper” means that a law must comply with Congress’s fiduciary (public trust) responsibilities. A law is not “proper”—and is therefore unconstitutional— if it invidiously discriminates among people, violates individual rights, is utterly irrational, or exceeds congressional authority.

* Contrary to prevailing legal mythology, Chief Justice Marshall’s famous case of McCulloch v. Maryland (1819) did not stretch the Clause, but applied it properly and with due regard for its limitations.

Recently, Dave Kopel, the Independence Institute Research Director, filed an amicus curiae brief in the most important anti-Obamacare lawsuit. He did so on behalf of Professors Lawson, Seidman, and me. The goal? To correct the record and inform the courts what the Necessary and Proper Clause REALLY means.

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Amendments Convention: Answering Those Not-So-Tough Questions

Posted by on Feb 22 2011 | Constitutional Amendments, Constitutional History, Constitutional Law, Economic LIberties, federalism, Politics, PPC, U.S. Constitution, U.S. Constitution

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.

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Correcting yet more constitutional mistakes at the Denver Post

Posted by on Oct 27 2010 | Constitutional History, Constitutional Law, federalism, First Amendment, Health Care, History, obama, PPC, supreme court, The Founders, Thomas Jefferson, U.S. Constitution, U.S. Constitution, Uncategorized

Constitutional mistakes just keep coming out of the Denver Post.

One was the editorial board’s assessment that “ObamaCare” is somehow constitutional.

Two more mistakes have just come from Post columnist Mike Littwin. In his Oct. 23 profile of the Tea Party Littwin wrote, that “the founders’ visions were often in complete opposition.”

Actually, the Founders’ visions were remarkably consistent — their disagreements were about how best to achieve common goals. Those common goals included a limited, republican federal government held to trust-style standards and protecting personal liberty. (American dissenters from those goals were called “Tories” and fled the country or dropped out of public life after the Revolution.) You can find the details in my new book The Original Constitution: What It Really Said and Meant.

Littwin returned with another column on October 27, in which if he didn’t make an error, he certainly left an mistaken impression.

He wrote “It was only recently that O’Donnell was laughed at by a group of law students . . . for saying that the separation of church and state was not guaranteed by the First Amendment. It’s an old argument, since the words themselves aren’t in the Constitution. But it was Thomas Jefferson, one of your more important founders, who did say exactly that in an 1802 letter to the Danbury Baptists concluding that the First Amendment built ‘a wall of separation between Church & State.’”

What Littwin apparently doesn’t understand is that “separation of church and state” meant something different to Jefferson than it means in discourse today.

Today the term is used for the view that both federal and state governments must divorce themselves from all religious recognition, even at the risk of seeming anti-religion. Believers in this view are called “strict separationists.”

That was hardly Jefferson’s view, since when he was governor of Virginia he supported religious holidays and blasphemy laws.

Actually (as most recent scholarship confirms), the Establishment Clause of the First Amendment meant only that the federal government could not establish a national church or otherwise favor some religions over others. My own research on the subject appears here.
[For the future, please note that Jefferson is not a very reliable source of constitutional meaning anyway, since he was in France when the Constitution was drafted and ratified.]

Senate candidates Ken Buck and Christie O’Donnell have gotten a lot of flak for saying they don’t buy the current notion of “separation of church and state.” Critics have tried to portray this as an opinion that is somehow looney or extremist. If so, then the current Supreme Court of the United States is looney or extremist, because it doesn’t agree with strict separation, either.

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Freedom Conference – Learn About Your Constitution

Posted by on Aug 28 2009 | Events, U.S. Constitution

The Freedom Conference is an educational event that will introduce you to the Constitution and demonstrate how the Federal Reserve monetary system is destroying liberty.  Education is the first line of defense for our freedom and country.  You will learn what you can do to stop the destruction of liberty and preserve the Constitution.

When: September 12th, 2009
Time: 9am to 12 noon.
Location: University of Denver, Sturm Hall, Davis auditorium, 2nd floor
2000 East Asbury Ave.
Denver, CO 80208
Price: $10, (parking available for $6).

Lecturers: Mike Holler, Paul Prentice, and Fred Holden.

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Obama Care’s Dubious Constitutionality

Posted by on Aug 17 2009 | Health Care, U.S. Constitution

During the Bush administration, many within the dominant culture expressed concern about the constitutionality of detaining several hundred alleged enemy combatants in Guantanamo.

Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.

But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.

In fact, the constitutional difficulties are profound. This is certainly so for those who believe the Constitution means what our Founders understood it to mean. But it is even true for those interested only in modern Supreme Court jurisprudence.Following are some of the ways in which current health care proposals potentially clash with our nation’s Basic Law: Continue Reading »

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