Miscellaneous

Alexander Hamilton, in the final Federalist Paper, number 85, discussed Article V, and the amendment power.  He tried to assure the people of New York that there would be a means for the States to control the federal government, should it ever encroach on the power of the States.  “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachment of the national authority.”

But Hamilton was wrong.  The national authority, or the federal government, has repeatedly encroached on the power of the States.  But in the 229 years since the Constitution was ratified, the State legislatures have never met in Convention to consider proposing a Constitutional amendment.  Congress has proposed 33 amendments, 27 of which have been ratified.  The States have proposed none.

This is because of a technical flaw in Article V.  For Congress to propose an amendment, a quorum, or majority, must meet to convene a session.  Then 2/3 of each house must vote in favor of the proposed amendment.  But the States must achieve a 2/3 quorum just to convene.  Then a simple majority is needed to vote for the proposal.

This is, obviously, backward.  The States should need only a majority of their number to convene an Amendment Convention, and then 2/3 should be required to send a proposal out for ratification.  This fatal flaw has effectively rendered the States powerless to resist the relentless encroachments of the federal government.

The checks and balances in the Constitution prevent any one branch of the federal government from exceeding its authority.  The executive branch, or the President, can be checked by Congress, with its impeachment power.  Likewise the Supreme Court.  But the only check on the power of Congress is the amendment power given the States by Article V.  And that power has never been exercised, due to a drafting error.

The Framers knew from experience the critical importance of quorums.  The Annapolis Convention never formally convened, because a quorum of seven states was not assembled.  The Philadelphia Convention was scheduled to begin on May 14, 1787.  Washington and the other Virginians were there, but had to wait until a quorum of seven was achieved on May 25th.

So why does Article V require a quorum of 2/3 for a meeting of states to consider proposing an amendment?  Was the state power to initiate amendments made into a dead letter intentionally?

Highly unlikely.  All the evidence points to a drafting error.   The original Virginia Plan gave only the states the power to amend.  On September 10, 1787 Hamilton suggested that Congress also be given the power to initiate amendments.  Madison agreed, and offered an amendment to that effect.  According to Madison’s Notes, it was intended that Congress and the states would have equal power to amend.  That intention is unfulfilled, and that’s why we need a Fix Article V Amendment.

The 11th and 12th Amendments were technical in nature, not substantive.  In order to give life to Article V, and give the states the power to reform Congress, another technical amendment is needed.

Don’t look to Congress to empower the states by proposing such an amendment.  34 states will have to agree to do it.  If they do, the result would be profound.  If they decide not to do their constitutional duty, they will have no right to criticize Congress.

They will have decided to just go along for the ride.

Rhode Island was the only state that absolutely refused to have any part of the Constitutional Convention.  It had been the first colony to declare its independence from Great Britain on May 4, 1776.  After that had been achieved in the War of Independence,  it clung tenaciously to its sovereignty, and was the last state to reluctantly ratify the Constitution.

The abuse by Rhode Island of its sovereignty under the Articles of Confederation was a warning of what lay ahead, if no national government was formed.  It could only end in warfare between the sovereign states.

Until 1842, Rhode Island’s government was a product of its colonial charter of 1663.  That charter restricted suffrage to property owners, and half the male population could not vote.  Further, those without land were prevented from filing civil suits, unless an endorsement was given by a property owner.  The charter also apportioned the state legislature, giving the rural areas vastly greater power than the populous urban parts of the state.

After the War of Independence Rhode Island was the leader in the slave trade, much to the annoyance of Virginia.  It refused to cooperate with the other states in establishing fair trade relations with Great Britain, seeking special advantages for itself.   The Rhode Island legislature was a law unto itself, and refused to submit to the courts.  At the time of the Convention it was ruled by extreme radicals in contempt of the rule of law.  If Rhode Island was a harbinger of things to come, what lay ahead was ruin.

In the next to last speech made on the last day of the Convention, Pinkney of South Carolina made the point explicitly.  After listing his objections to the Constitution, he explained his vote in favor of it.  Madison reports his rationale: “But apprehending the danger of a general confusion, and an ultimate decision by the sword, he should give the plan his support.”

The Constitution was a product of hope, but also of fear.  Fear of what Rhode Island had become.  Fear of civil war.

At the Philadelphia Convention, the most difficult challenge was the sovereignty of the states.  The “monster sovereignty”, Washington had called it.  In forming the federal government, were the states surrendering their sovereignty?

Sovereignty is supreme political power.  The sovereign gets the final say, and cannot be overruled.  I believe that the Constitution did not take away the sovereignty of the states, and the people.  Rather, it made it collective.  The states, and the people, remained sovereign, but only if they acted in concert with one another.   This is statecraft of the highest order.

The power to unilaterally amend the Constitution gives the states, and the people, the  final say, and makes them the collective sovereign.  The power to amend includes within it the power to impeach.  The states, and the people, could, theoretically, not only impeach the President, the Supreme Court, and the entire Congress. they could abolish them as institutions.

Except the Senate.  Thanks to the last floor amendment, in the last hour, of the last day of the Convention, the Senate cannot be abolished.  Governeur Morris proposed this amendment, and it passed without dissent.

This makes the states, and the people, as long as they act in concert with one another, the sovereign in our constitutional system.  Other than abolish the Senate, and its equality of state suffrage, the states, and the people, can do anything.  There is no appeal, no higher authority.

I say “the states, and the people”, advisedly.  Because Congress can require that any amendment be ratified by the people, not by the state legislatures.  If the state legislatures became, collectively, some sort of threat, any amendment they propose can be submitted to the people, acting in state conventions.

The retention of collective sovereignty by the states, and the people, is a feature, not a bug.  As Hamilton summed up his case for ratification in Federalist 85, “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

Up until now, that reliance has been misplaced.  Activating Article V with the Mason Amendment will change all that.

Let the erection of barriers begin.

 

 

George Will used to have interesting things to say about politics, but that was long ago.  The older he gets, the more of a pest he becomes.

His latest, a vicious attack on Mike Pence, is a byproduct of his Trump Derangement Syndrome.  George is highly offended by Trump, his moral inferior.  This despite the fact that Trump is accomplishing more for the sacred cause than Ronald Reagan.

No matter.  He’s a boor.  So he’s not welcome in George’s little tea party of a world.  A world, I might add, which is shrinking rapidly.

It came to me last night, on my daily nature walk.  We’re going to fix Article V, and pass the Mason Amendment.  I can see it clearly now.

The nice thing about it is its elegance.  An elegant solution is one in which the optimal outcome is achieved with the minimal expenditure of effort and expense.

I don’t need to form an organization or raise any money.  I don’t need to get any publicity.  I don’t need to convince anyone who isn’t already convinced.  I just need to channel and harness energy which is already in existence.

That energy exists because of the years of effort by hundreds of people, starting with State Senator Jim Clark of Maryland in 1975.  He started the campaign to pass a Balanced Budget Amendment using Article V.   That campaign happened to peak in 1983 when Alaska became the 32nd state to pass a BBA Resolution.

That’s when the opposition organized, led by national figures in the Democratic Party, beginning with House Speaker Tip O’Neill.  They allied themselves with the paranoid right, led by Phyllis Schlafly.  A full half of those 32 BBA Resolutions were rescinded.

The BBA Task Force launched its counter offensive some seven or eight years ago, and its work laid the groundwork for the final solution.  All that work, and the sacrifices made by Bill Fruth, Dave and Suzie Biddulph, Loren Enns, David Guldenschuh, and many others are going to pay off.

I’ll need to make my case to a select group of state legislators after the November elections.  I have a lot of time to set it all up.

I feel like Newton when he saw the apple fall from the tree.  It was all in plain sight, if you just looked, and thought, hard enough.