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Untried Weapons — Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 6)

6. Guest Constitutional Scholar Essayists, 90 in 90 2015, The Honorable David Eastman 2. The Constitution, 5. Constitutional Crisis – Executive Overreach, Article V, But That Has Been Found Difficult; And Left Untried (Part 6), David Eastman, Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting

Guest Essayist: David Eastman

Previous essays in this series explored why the Constitution is ineffective at restraining federal officials today, and illustrated how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively limiting federal overreach. This series now concludes by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints today; issue-based legislative accountability, and the calling of a convention of states to amend the United States Constitution.

A Convention for Our Time

When we survey the Constitution today, it is increasingly difficult to picture it as the splendid banner raised by Washington and his fellow delegates at the Constitutional Convention of 1787. Nor does it today call to mind the iron chains described by Thomas Jefferson when he spoke of binding men down from mischief “by the chains of the Constitution.” Instead, the Constitution hangs frayed and tattered today, a silent witness to more than two centuries of flying above our nation’s capital. Its form has changed very little since 1787, but much of the life has gone out of it. Some today have begun to ask if it isn’t time for another convention—and in no state is this idea greeted with greater enthusiasm than here in Alaska. Holding a convention would open the door to a whole series of amendments, which could add new thread to a tattered banner, and in so doing breathe new life into the Constitution. Even so, when the idea of a second convention first began to gain traction in 1788, James Madison argued that the timing of any future conventions should be chosen only with great care. Whether the timing is right for another convention is an important question, and one to which any serious student of the Constitution should give careful consideration.

August 4, 2015/2 Comments/by Janine Turner and Cathy Gillespie

Untried Weapons — Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 7) – Guest Essayist: David Eastman

6. Guest Constitutional Scholar Essayists, 90 in 90 2015, The Honorable David Eastman 1. The Federalist Papers, 2. The Constitution, 5. Constitutional Crisis – Executive Overreach, Article V, But That Has Been Found Difficult; And Left Untried (Part 7), David Eastman, Federalist No. 57, Federalist No. 72, Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting

Previous essays in this series explored why the Constitution is ineffective at restraining federal officials today, and illustrated how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively limiting federal overreach. The most recent essay highlighted current efforts to amend the Constitution through an Article V convention. The series now concludes with another largely untried weapon in the citizen’s arsenal today; issue-based legislative accountability.

A Deaf Congress

In 2014, researchers at Princeton University released the results of an exhaustive study that analyzed more than twenty years of federal policy. The study evaluated various actors and the effect that they had on public policy. After examining literally thousands of laws and how those laws came to be made, they were forced to admit that ‘the number of American voters for or against an idea has literally no impact on the likelihood that Congress will make it law.’ Specifically, they concluded that “the preferences of the average American appear to have only a miniscule, near zero, statistically non-significant impact upon public policy.” There are many reasons for this, not the least of which is that the level of political sincerity possessed by the average American today is miniscule, near zero, statistically insignificant.

August 6, 2015/1 Comment/by Janine Turner and Cathy Gillespie

Article V, The Original Documents, The United States Constitution 2. The Constitution, Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

November 13, 2013/0 Comments/by Janine Turner and Cathy Gillespie

“What is Progress?” by Woodrow Wilson

Daily Essay 2013, Robert Lowry Clinton, Ph.D. 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Robert Lowry Clinton PhD, What is Progress? by Woodrow Wilson

Guest Essayist: Robert Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale

The elevation of Woodrow Wilson to the presidency of the United States is a defining moment in American history. It signaled the triumph of an ideology destined to transform the United States Constitution from an instrument of limited government to one of consolidation, much as had been feared by0 the Antifederalist Brutus more than a century before. That ideology is known as “progressivism,” the essentials of which are laid out clearly and unapologetically in Wilson’s “What Is Progress?” Included in these essentials are: belief in the perfectibility of human beings and human societies, demonization of the past and devaluation of time-honored traditions, and the worship of science and technology. Read more

May 30, 2013/1 Comment/by Janine Turner and Cathy Gillespie

America’s experiment in self-government reveals itself in the Amendment process

Analyzing the Amendments in 90 Days 2012 Project, The Honorable John Boehner 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Bill of Rights, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XVIII, Constitutional Amendment XXVII, Declaration of Independence, John Boehner, The Constitution of the United States of America

Guest Essayist: The Honorable John Boehner, 53rd Speaker of the U.S. House of Representatives

I’m honored and delighted Constituting America would extend me an opportunity to conclude this year’s round of essays on the amendment process and to address the genius of the U.S. Constitution.

Our Founding Fathers believed in some simple and yet, for their times, absolutely revolutionary ideas. One of these ideas was that every individual possessed fundamental rights even prior to these rights ever being put into writing. Recall the words of the Declaration that these rights were “unalienable” and their existence a “self-evident” truth.

Another revolutionary idea was that government power or action essentially occurs at the expense of individual rights and liberties. This idea turned completely upside down the reality of nearly every government in history to that point. Most systems of rule placed a monarch, tyrant, or oligarchy at the top of subservient masses. Even in colonial times, many of us may forget, Americans were “subjects” to the British crown.

A remarkable thing about our system is that we place all of the citizenry at the top of the hierarchy.

At the Constitutional Convention in 1787, the Founders put in writing exactly how Americans would rule themselves within a framework of individual liberty. The document announced to the world a new concept: limited government at the heel of free people.

George Washington described this concept in a letter to a nephew shortly after the conclusion of the convention. “The power under the Constitution will always be in the people. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own choosing; and whenever it is executed contrary to their interests, or not according to their wishes, their servants can, and undoubtedly will, be recalled.”

Moreover, not only could representatives be changed, but the document itself could be altered. The Constitution’s amendment process is self-government at work. Other writers of this series over the past 90 days highlight more than two centuries of reform and adjustment. Our Founders set up an amazing basic framework where citizens will forever have the privilege and right, under Article V, of making amendments.

During my early years in the House I worked for the ratification of the 27th Amendment, a provision dealing with Congressional pay originally part of the Bill of Rights but left un-ratified until 1992. It was a privilege to see the genius of our Founders at work again, two centuries later. My respect for that genius has only grown.

Shortly after my swearing in as Speaker of the House at the start of the 112th Congress, the Constitution was read in full on the House floor. To the best of my knowledge, this had never been done before in American history. I hope and trust a new tradition has been initiated.

This was done not only to honor liberty-loving Americans who take seriously Washington’s advice to recall “contrary” representatives, but because my Republican colleagues had promised to put our founding documents in their proper perspective. In our Pledge to America, we said: “We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored – particularly the Tenth Amendment, which grants that all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

My colleagues and I also passed a House rule that requires Members to cite Constitutional authority in every piece of legislation they introduce. The American people deserve to know that the laws we pass and the actions we take comport with the spirit of our Constitution.

Let me again thank Constituting America for their education work. They live by the admonition of James Madison: “A well-instructed people alone can be permanently a free people.”

Since its ratification in 1788 the success of our Constitution has been a precious gift worth defending. It is a light for the rest of the world and a torch to be handed to future generations.

The Honorable John Boehner represents the 8^th Congressional District of Ohio, and is serving in the 112^th Congress as the 53^rd Speaker of the U.S. House of Representatives.

June 22, 2012

Essay #90

June 22, 2012/7 Comments/by Janine Turner and Cathy Gillespie

Amendment XXIV, Section 2

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXIV, Joerg W. Knipprath 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article V, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XvIX, Constitutional Amendment XXIV, Joerg W. Knipprath, The Constitution of the United States of America

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/43382879

Amendment XXIV:

1: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2: The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20^th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15^th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15^th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15^th Amendment (race) and the 19^th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24^th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14^th Amendment.

The Court obviously was aware of the 24^th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24^th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14^th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24^th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14^th Amendment.

Of course, traditionally the 14^th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15^th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15^th Amendment to strike down certain voting restrictions on race earlier in the 20^th century, and did not even begin to take gingerly steps towards the 14^th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24^th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24^th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14^th Amendment, as it did in Harper.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

June 4, 2012

Essay #76

June 3, 2012/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XXI, Section 1

Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXI, Lawrence J. Spiwak 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment XXI, Constitutional Amendment XXI, Lawrence J. Spiwak, The Constitution of the United States of America

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Amendment XXI, Section 1:

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Ending Prohibition: Are there Lessons to be Learned?

In this essay, my intention is not to focus on the fact that the 21^st Amendment repealed Prohibition, but to explore briefly what lessons we can learn from the experience.

To quickly summarize the facts, the 18^th Amendment was enacted in 1919, which prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” However, as detailed in the excellent Ken Burns documentary, Mark Thornton’s seminal book entitled The Economics of Prohibition, and elsewhere, despite its altruistic intentions, Prohibition didn’t decrease alcohol abuse but increased it; Prohibition didn’t eliminate crime but created it; and Prohibition certainly didn’t increase prosperity but robbed the treasury of taxes. As a result, Prohibition was repealed in 1933 by the 21^st Amendment. (Significantly, because of fear of grassroots political pressure from the temperance movement, the 21^st Amendment is, thus far in American history, the only constitutional amendment ratified by state conventions rather than by the state legislatures.)

Given this debacle, I think there are at least a few lessons I think we can learn:

To begin, Prohibition provides an excellent example—albeit a bit dysfunctional one—of the amendment process spelled out by Article 5 at work, in that we as a society were able to self-correct a policy gone horribly wrong. Indeed, although I’m sure Prohibition was enacted with the best of intentions, the Prohibition experience nonetheless epitomizes the “law of unintended consequences.”

That said, here is an interesting question to ponder: let us assume that rather than elevate Prohibition to the full fledged level of a Constitutional Amendment, we only went so far as to pass a law that prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” Would it have been easier for us to self-correct Prohibition via either a new law through the legislative process or a Constitutional challenge in the courts? Probably. As a result, Prohibition also teaches us to exercise some degree of caution and careful thought before we seek to undertake another effort to amend the Constitution.

Yet, but perhaps most importantly, Prohibition forces us to recognize the old maxim that if we are to be a society of laws, then the public must believe in the legitimacy of the law. Indeed, in undertaking research for this essay, I came across a telling quote by wealthy industrialist John D. Rockefeller, Jr. from 1932, whereby he wrote:

“When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.”

So what is it about Prohibition that caused many Americans literally to lose faith with their own Constitution? Certainly, we have a lot of laws that constrain personal behavior (e.g., prohibitions against murder; prohibitions against fraud and theft; prohibitions against treason), but everybody generally accepts these constraints as necessary to ensure a functioning society. What was it about Prohibition that, to use Mr. Rockefeller’s words, “created a vast army of lawbreakers…”?

Although I’m sure different people can provide different answers to this question, I come out with the view that Prohibition failed because Americans simply came to realize that the government had no business sticking its nose into their personal lives and interfering with their proverbial “pursuit of happiness.” Thus, because many Americans viewed the law as violating their basic civil liberties, they saw no reason to comply with the law.

To illustrate my point, let’s take the following extreme hypothetical example. As many readers of Constituting America are well aware, American’s cherish their Second Amendment right to bear arms. Now, let’s assume that a huge “firearms temperance” movement sweeps the nation and, as a result, a new Constitutional amendment is enacted that repeals the Second Amendment and prohibits the “manufacture, sale, or transportation of firearms within, the importation thereof into, or the exportation thereof from the United States.” In such a hypothetical case, while law abiding citizens could no longer own guns to hunt or to protect their families, do we honestly think that gun-related crimes would disappear or that a vibrant black market for firearms would not instantly blossom? Of course not. In such a case, I have no doubt that after a few years of many unintended consequences, there would be a forceful movement to repeal my hypothetical amendment too.

In sum, Prohibition teaches us that while it is possible to correct bad policy decisions, any time we seek to elevate an issue to the level of a Constitutional Amendment we should do so with both great discipline and respect for individual liberty. If we do not learn the lessons from Prohibition, however, then we are doomed to repeat them in the future.

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center or its staff.

May 25, 2012

Essay #70

May 24, 2012/2 Comments/by Janine Turner and Cathy Gillespie

The Amendment Process

Analyzing the Amendments in 90 Days 2012 Project, Larry P. Arnn, Ph.D. 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Article V, Bill of Rights, Declaration of Independence, Declaration of Independence, Federalist No. 49, Larry P. Arnn PhD

- Guest Essayist: Dr. Larry P. Arnn, president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It

Only with a large effort can the Constitution of the United States be formally amended. This was not an accident, but the intention of its framers.

If the Constitution is changed too often and for the wrong reasons, the people of America, the Founders held, will lose reverence for its principles, and respect for its rule. With reverence lost, they might cease to be a self-governing people. Tyranny itself could topple liberty.

The Constitution is difficult to amend not because the Founders distrusted the people. In fact, they trusted the American people more than any other constitution-makers had ever before trusted a people. They took pride in the fact that no separate or special class of persons would hold any authority under the Constitution. They created no aristocracy or favored group, and their design did not pit one group of citizens against another.

Instead, they rested all power in the hands of the people. Then they divided that power so as to encourage fairness and deliberation in their judgments. It is the “reason alone of the people that must be placed in control of the government,” writes James Madison in Federalist 49. “Their passions must be controlled by the government.”

Our American regime is the first in which sovereignty lies outside the government—in the people. The Constitution’s structure in its original form was designed to bring power and restraint together. The people must come to respect the restraint of the government so that its properly-limited power might be upheld. The Constitution provides for limited government so that the natural rights of citizens can best be secured.

In this sense, Alexander Hamilton noted that the Constitution itself, even before it was amended, was “a bill of rights.” Adding the first ten amendments, which the First Congress did in 1791, marked a reaffirmation and an explicit statement of rights held by the people and the states, but all of these are affirmed in the original structure of the Constitution—with its separation of powers, representative form, and limited grant of power to the government. All of these essential features of good government were stated with unmistakable clarity in the Declaration of Independence.

Today, the Bill of Rights is often confused as the source of American liberties. In fact, as both Madison and Hamilton knew, it is the Constitution’s structure that provides the surest bulwark of our liberties. Destroy the structure, and liberty will be lost. Alter the structure significantly (see the Seventeenth Amendment), and liberty is endangered.

Without reverence for it, the Constitution, like the Bill of Rights that is now part of it, will be but a “parchment barrier.”

Out of the more than 5,000 amendments to the Constitution proposed in Congress since 1789, only 27 have been adopted. There are two possible ways to amend the Constitution, both of them specified in Article V. All of the current amendments to the Constitution have been adopted following the first path, wherein votes are required by two thirds of both houses of Congress, followed by a vote of three-fourths of state legislatures.

The other path, to date not used successfully, is the convention method, in which two-thirds of the state legislatures can call a constitutional convention, after which three-fourths of the state legislatures or state conventions must then ratify the proposed amendment or amendments to the Constitution. Conventions have been avoided probably for good reason, since it is not clear to anyone whether a convention would be bound to changing only one item in the Constitution. We Americans have been pleased to have only one Constitutional Convention.

The New York Times recently noted that outside of the defunct Yugoslavian constitution, there is no other constitution in the world so hard to amend as ours. By coupling our Constitution with a failed state, the article seemed to imply that if we don’t get with the times, we will be left behind. Our country, they quote a justice of Australia’s high court as saying, is becoming a “legal backwater.”

For over a hundred years the Constitution has been assailed as undemocratic, and in need of an overhaul.

Long is the list of books written recently suggesting ways—formal and informal—to make our Constitution better. When formal amendment efforts fail, informal methods are advanced. Efforts to informally amend the Constitution—to bring it into better congruity with fashionable legal and political norms of today—can be successful only if citizen reverence for the Constitution is lost.

—Dr. Larry P. Arnn is president of Hillsdale College, and author of The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It. Hillsdale’s “Constitution 101,” an online course which features lectures by Dr. Arnn and others, starts today. For more information on Constitution 101, go to: http://constitution.hillsdale.edu

Click here to watch a reading of this essay!

February 19, 2012/46 Comments/by Janine Turner and Cathy Gillespie

Amendment XXV of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XXV, William C. Duncan 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article II Section 1 Clause 6, Article V, Constitutional Amendment XXV, Constitutional Amendment XXV, Federalist No. 68, William C. Duncan

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XXV

1: In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

2: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The 25^th Amendment, ratified in 1967, answers open questions about presidential succession.

What happens when the president dies in office?

Under Article II, if the president is removed, dies, resigns or is unable to perform his duties, these duties fall to the vice president (section 1, clause 6). Alexander Hamilton said a vice president “may occasionally become a substitute for the president” (Federalist 68). While this seems clear, the exact status of the vice president when taking on the president’s duties or acting as a “substitute” was not certain. When William Henry Harrison died of pneumonia in 1841, Vice President John Tyler insisted on becoming the president rather than just an “acting president” as some urged. See Mark O. Hatfield, Vice Presidents of the United States, 1789-1993 (1997) at http://www.senate.gov/artandhistory/history/resources/pdf/john_tyler.pdf. All eight of the vice presidents who assumed the presidency on the death of the president followed this precedent. Section One of the 25^th Amendment formalized the precedent, specifying that if the president is removed, dies or resigns “the Vice President shall become President.”

What happens if there is a vacancy in the vice presidency?

The eight times a president died in office and the vice president became president there was a vacancy in the vice presidency, as occurred also when seven vice presidents died in office and two resigned. See John D. Feerick, “Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment” 79 Fordham Law Review 907, 943-944 (2010). The Congressional Research Service notes, “for some twenty percent of United States history there had been no Vice President to step up.” CRS Annotated Constitution, “Twenty-fifth Amendment” at http://www.gpoaccess.gov/constitution/pdf2002/043.pdf. Section Two of the 25^th Amendment provides the solution for these instances by allowing the president to nominate individuals to fill vacancies in the vice presidency. The person nominated can take office when a majority of the House and Senate confirmed the nomination. Gerald Ford (in 1973) and Nelson Rockefeller (in 1974) became vice presidents following this procedure.

What happens if the president knows he or she cannot fulfill the duties of the presidency?

The Constitution did not specify the procedure to follow in the case of a president being incapacitated. If the president knows of the incapacitation beforehand, as in a planned medical procedure, section Three of the 25^th Amendment allows the president to notify the President pro tempore of the Senate and Speaker of the House that the Vice President will be Acting President during a period when the president cannot fulfill the duties of that office. When ready to resume the duties, the president notifies these same officials. President George W. Bush invoked this portion of the Amendment twice for routine medical procedures.

What happens when the president is incapacitated but cannot or will not step aside and let the vice president act as president?

Before his death by assassination, President James A. Garfield lived in a coma for eighty days. President Woodrow Wilson had a debilitating stroke a year and a half before the end of his final term. President Dwight D. Eisenhower experienced a heart attack and stroke while in office. See Calvin Bellamy, “Presidential Disability: The Twenty-Fifth Amendment Still an Untried Tool” 9 Boston University Public Interest Law Journal 373, 376-377 (2000). Until, the ratification of section four of the 25^th Amendment there was no Constitutional direction for handling situations where the president could not function and could not or would not step aside. Now, the vice president “and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” can notify legislative leaders of the president’s inability to fulfill the duties of the office and the vice president then begins acting as president. The president can resume office by notifying the legislative leaders that there is no inability. When the vice president (and the executive officials) disagree with the president about the president’s capacity and send dueling declarations to Congress, Congress decides the issue. Specifically, if 2/3 of members of Congress agree that the president is incapacitated, the vice president acts in the president’s stead, otherwise the president continues to function (and White House meetings are, no doubt, chilly).

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

June 22, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Amendment XVIII of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment XVIII, Joerg W. Knipprath 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article V, Constitutional Amendment XVIII, Constitutional Amendment XVIII, Constitutional Amendment XXVII, Constitutional Amendment XXVII, Joerg W. Knipprath

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XVIII

1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Prohibition was not a novel idea in 1919. It was part of a social reform movement, the first waves of which had lapped American shores during the middle of the 19^th century. It was a movement different from the ecclesiastical Great Awakenings that had surged periodically through the American colonies, though it shared some connection with those movements. Still, these reforms were sufficiently novel and widespread to lead Ralph Waldo Emerson to characterize them as a “war between intellect and affection” and its adherents as “young men…born with knives in their brain.”

Thirteen states had passed laws that prohibited the sale of alcohol by 1857, including, incredibly from a 20^th-century perspective, New York. Following the Civil War and abolition of slavery, the enthusiasm for social reforms in general was exhausted in favor of a general yearning for a return to normalcy. But it returned with a vengeance towards the end of the century, with prohibitionists joining women’s rights groups to combat “demon rum.” That urge fed into a broader social movement to better the human condition and, indeed, human nature. While reformation of the human soul previously had been mainly the province of religion, the remaking of human nature had become, by the 20^th century, as much a secular as a religious project. The growing middle class, “social science” movements in the study of human institutions, modern psychology, and old-style political power calculations combined in the Progressive Movement. Its adherents sought to improve human beings, as well as institutions, whether or not those human beings or institutions wanted to be improved.

The Progressives looked to the power of the state, not to individuals or private groups, to get things done efficiently. For many of their leaders, such as Princeton professor (and eventual U.S. President) Woodrow Wilson and his later advisers, such as Herbert Croly, the old institutions, such as the Constitution and the courts, were anachronisms that prevented the emergence of a better order, led by an enlightened and [P]rogressive elite. To achieve what critics then and now have characterized as totalitarianism of more or less soft type, these Progressives looked to the law as the tool to forge the new order. Law was no longer a series of constructs that reflected an inherent reason and that was useful to provide some rules to maintain a basic order in society. For the Progressives, the law was nothing less than an extension of social policy.

Alcohol prohibition also reflected the Progressive impulse to national mobilization to address issues, and the desire for a strong national government led by a strong and charismatic leader. It is not coincidental that these traits were also found in various continental European mass movements that sought to establish the new man, freed of traditional human weaknesses. The American version may have lacked some of the more pugnacious aspects of its European counterparts in Italy, Spain, Germany, and the Soviet Union, but it was close enough. As the National Review writer Jonah Goldberg has written, the period was one episode of America’s “Liberal Fascism.”

Prohibition previously had primarily been the project of the states, with Congress and the Supreme Court assisting “dry” states by declaring that their prohibitions did not violate federal control over interstate commerce. By 1913, in the Webb-Kenyon Act, Congress went further, by affirmatively forbidding the shipment of liquor in interstate commerce into dry states. Thus, prohibition became a national matter, a development also reflected in federal criminalization of drug trafficking, gambling, and prostitution. All of those were vices that the Progressives (just like their reformist ancestors) saw as products of a craven humanity that needed to be—and could be—reformed, while their critics saw such activities as necessary social safety valves, inevitable for societies composed of humans that could, at most, be nudged towards slight and gradual enlightenment at the cost of great personal effort of which most people were incapable. For the critics, laws against such behavior had the same effect as telling the tides not to come in (or commanding the sea levels not to rise).

By 1919, the Eighteenth Amendment completed the process by prohibiting the manufacture, transportation, and sale of intoxicating liquors within the United States. Later that year, Congress acted on the authority it had under that amendment and enforced national prohibition through the Volstead Act. That law set the maximum permissible alcohol content at 0.5%, an amount that outlawed anything stronger than juice from stored oranges.

In light of the negative historical reputation that has developed around Prohibition, it bears remembering that the concept was hugely popular initially. It took barely one year for the needed 36 states to approve the 18^th Amendment. However, that support turned to opposition within a very brief time, in the process raising a number of constitutional questions about that amendment specifically, and about the constitutional amendment process more generally.

A novel attribute of the 18^th Amendment was a clause that required the amendment to be adopted within 7 years. When the issue was presented to the Supreme Court in Dillon v. Gloss in 1921, Justice Willis Van Devanter upheld this limitation for a unanimous court. Van Devanter concluded this clause was not part of the amendment, but part of Congress’s resolution of submission of the amendment to the states. Therefore, such a clause did not violate Article V, which deals with amendment of the Constitution.

Van Devanter’s opinion was important for the proposed Equal Rights Amendment of the 1970s. When that amendment failed to gain passage during the time (7 years) set, Congress by a majority vote—but not two-thirds—added three years to the timetable for adoption. While this action arguably was constitutional in light of Dillon, it came at a political price. Opponents made an effective case that the extension was political overreaching, at best, and unconstitutional, at worst.

The Dillon court had also declared that it was a good idea that constitutional amendments be adopted within a certain time-frame, to reflect a dominant political consensus at a particular time. Van Devanter noted that there were still several proposed amendments that had not been ratified, including two from the original twelve in the Bill of Rights. He questioned whether such an amendment would be legitimate, if adopted after such long dormancy. That hypothetical became concrete when the 27^th Amendment (dealing with Congressional pay changes) was adopted by the requisite number of states in 1992, after two centuries of constitutional purgatory.

Interestingly, Van Devanter may have had a point because the practice has been not to allow states to rescind their approval of an amendment even though the amendment may not have been adopted on the date of the attempted rescission. Of course, states are free to approve after having previously refused to adopt the proposal. This one-way ratchet in favor of approval has little to recommend it jurisprudentially over the opposite view. It was simply the product of political necessity, when Congress refused to allow states to rescind approval of the 14^th Amendment because the unpopular and controversial amendment’s congressional supporters needed every state they could to get it past the constitutional finish line.

Another curiosity of the 18^th Amendment was that, as disillusion set in, many of the new opponents were Progressives and elites of all political stripes. Due to the perceived difficulty of repealing the amendment, they urged nullification by having the states refuse to enforce the federal laws and decline to make their own. The irony of their position was not lost on them, as they openly appealed to the success that Southerners had enjoyed with their refusal to enforce the 14^th and 15^th Amendments. Sounding like John C. Calhoun and other 19^th-century Southern apostles of nullification, these good liberals distinguished between lawbreaking and orderly, principled, majoritarian nullification.

Another question involved whether the Ohio legislature could approve the 18^th Amendment when a non-binding popular referendum had resoundingly rejected it. In Hawke v. Smith in 1920, Justice William Day’s opinion for a unanimous Supreme Court held that the legislature, voting on a constitutional amendment was performing a federal function under Article V, not a state function. Since Article V did not provide for popular referenda, the voters of Ohio had nothing to say about the matter, a proposition of some delicacy, since state legislative elections rarely turn on how a legislator proposes to vote on a federal constitutional amendment that, typically, is not submitted until after such election.

Finally, a number of opponents urged that any amendment, such as the 18^th, that curtailed individual rights, must be adopted by state constitutional conventions, not state legislatures. Though it was not expressly required by Article V, such had been the approach for the Bill of Rights. The Supreme Court rejected that argument unanimously in U.S. v. Sprague in 1931, but the argument had such political appeal that Congress directed that the repeal of prohibition through the 21^st Amendment be decided by state constitutional conventions.

June 13, 2011/2 Comments/by Janine Turner and Cathy Gillespie

Article V of the United States Constitution

Analyzing the Constitution in 90 Days 2011 Project, Article V, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 01, Joerg W. Knipprath, The Articles of Confederation

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article V

Article V, which provides the methods for formal amendment is, arguably, the most important provision in the Constitution outside the creation of the structure of government. That article embodies a compromise over a very contentious issue that was grounded in conflicting doctrines of republicanism and higher law theory swirling during the Revolutionary War period.

On the one hand, 17^th and 18^th century republican theory called for decisions by majority vote, albeit under a restricted franchise. This was a proposition that manifested itself in the post-Glorious Revolution English constitutional system in which a majority of the Parliament (effectively, the House of Commons) not only enacted “ordinary” legislation but controlled constitutional change, as well. Under the English system, there was no categorical distinction between ordinary laws and those of a foundational, i.e., constitutional, nature. For example, the Charter of Rights did not become politically binding until passed in 1689 as a parliamentary bill. This was a manifestation of a “constitution” that, being unwritten, was considered solely a fundamental political ordering, rather than also a fundamental law. Hence, there was no formal constitutional amendment process outside an appeal to Parliament to pass or repeal laws that were “constitutional” in the operative sense.

This English Whig republicanism had many adherents in the United States among leaders of the Revolution. For them, the problem was not the theory but the practitioners. Not surprising, then, some early state constitutions, too, placed the amending power with the legislatures. Even if a state constitution contained a bill of rights that was immune from legislative tinkering, any violation of that command was to be resolved through political action. Moreover, anything outside that bill of rights was left to legislative change.

Yet, by the 1780s, an entirely different conception became dominant. To be sure, reaction against the entrenched constitutional order arose from the experience of Americans with the militant republicanism of the day embodied in legislative majorities that, in too many states, contributed to political and economic turmoil exacerbated by class warfare rumblings and the trampling of rights in property. Experience may have sufficed to cause disenchantment with the existing constitutional structure, but it was not enough to explain the emergence of the alternative.

Enter the “higher law” conception of constitutions. Americans had lived in colonies governed, directly or indirectly, by royal charters. By their thinking, Americans were in a contractual, and therefore “legal,” relationship with their proprietors and the Crown through these charters and patents, and Parliament simply had no control over them. Local laws were valid, as long as they conformed to the charter.

This emergent “higher law” constitutionalism also had religious and political roots. Focusing on the latter, it was a component of social contract theory. The republican version of the legitimacy of governmental action under the social contract focused on the political mechanism to be used after the commonwealth was formed, namely, legislative majorities. The higher law doctrine focused on the relationship of the majority’s act to the qualitatively superior action of creating the commonwealth. In a strict version of that view, unanimous consent was required to form the social contract. In the American experience, the Mayflower Compact provided one such example. At the same time, looking at disparate social contract theorists, such as Thomas Hobbes and John Locke, one finds much ambiguity and question-begging assumptions about how exactly the social contract’s obligations arise.

The colonial experience with royal charters fairly early suggested that such documents were first, law; second, fundamental; and third, not amendable as ordinary legislation. They were law because written and, being in the nature of contracts, binding on all signatories (and, perhaps, their successors). They were fundamental because they dealt with matters that went to the very organization of the political commonwealth. They were not amendable as ordinary laws because each free person had to consent to the changing of the deal that created the basis of political obligation and made the acts of government different from those of a brigand. If unanimity was impractical, at least a supermajority ought to be required. Thus, the charter for Pennsylvania as early as 1701 called for amendments to be adopted only upon 6/7 vote of the assembly.

A pure form of this approach was found in the Articles of Confederation. As the Articles can be considered the formal basis for the formation of a political commonwealth, the United States of America, and in light of the fact that the document repeatedly refers to that commonwealth as a “perpetual union,” it is a social contract. As such, it could only be amended by the consent of all signatories to the compact, though, of course, a state might provide that a majority within its legislature sufficed to bind the state.

That unanimity requirement was quickly perceived as a parlyzing defect of the Articles. When the Framers of the Constitution considered the matter, they believed that they had to find a way that avoided the potential for constitutional turbulence from radical republican majoritarianism as well as for constitutional sclerosis from rigid social contract-based unanimity. They urged that the supermajority requirements of Article V appropriately split the difference. This is not a matter readily settled. The procedure has only been invoked successfully 18 times (the original ten amendments having been adopted at one time). What is clear, though, is that the relative difficulty of the procedure has allowed the unelected judiciary to take on the role of de facto constitutional amendment to a much greater extent than the Framers likely anticipated and than what is consistent with classic republican ideals.

Judging by early state experimentation, constitutional change was to occur, if anything, more directly through the people than Article V allows. Constitutions were typically the job of special conventions whose work would be ratified by popular vote. Actions by such special bodies and by the people themselves were more immediate realizations of popular sovereignty than actions by legislatures, even by legislative supermajorities. George Washington characterized them as “explicit and authentic acts of the whole people.” It was impractical, however, at the national level, to have all people gather at town halls. Nor was it deemed practical — or wise — to have a national vote on amendments.

In Article V, the mechanism of popular participation is the convention. That mechanism is available for the proposal of amendments emanating from the states and the adoption of the amendments by the states. It is interesting, and perhaps disappointing from the republican perspective, that the first has never been used and the second has been used only to repeal another constitutional amendment, regarding alcohol prohibition. Instead, Congress typically proposes, and state legislatures dispose.

There is, however, an institutional reason why no constitutional convention has been called to draft amendments. Plainly put, Congress and the political elites fear that a convention could ignore any specific charge from Congress and draft a whole new constitution. That is, after all, what happened in Philadelphia in 1787. If a matter came close to receiving the requisite number of petitions from states, it is likely that the Congress would itself adopt an amendment and submit it to the states. That is precisely how Congress got around to proposing the 17^th Amendment for the direct election of Senators after enough states submitted petitions to put them one short of the required 2/3. Currently, the proposed balanced budget amendment is just two states short.

More troubling to some is whether the people could go outside Article V to form a convention. That was an issue raised, but not resolved, before the Supreme Court in 1849 in a case involving an insurrection in Rhode Island under the guise of adoption of a “popular constitution.” Traditionalists point to Article V as providing the means the people have chosen to limit themselves, lest constitutional instability be the order of the day. In response, republicans assert that American bedrock principles of popular sovereignty (found, among other places in the Federalist Papers) do not admit of so limiting the people’s power. The people ultimately control their constitution, not vice versa. James Wilson, no wide-eyed radical, speaking in the Pennsylvania ratifying convention, defended the Framers’ alleged departure from their charge by the Confederation Congress by declaring what was a self-evident truth to most Americans at the time, that “the people may change the constitutions whenever and however they please.”

May 16, 2011/5 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 49 & Federalist No. 50 – Cathy Gillespie

Federalist Paper 49, Federalist Paper 50, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 15. Essays by Cathy Gillespie, Article V, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 43, Federalist No. 49, Federalist No. 49, Federalist No. 50, Federalist No. 50

Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges! It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”

These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49. Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.

Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution. In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.

It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason. Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’ final result: Article V of the Constitution.

The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:

Article. V.

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.

To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.

The beauty of the amendment process, as Madison described in Federalist 43 is:

“It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

In practice, what is our country’s history of amending the Constitution? Has it worked out as well as Madison intended and predicted?

I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:

5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.

Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.

The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.

Those supporting the 17^th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17^th Amendment.

Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!

The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”

The amendments to our United States Constitution read like a history of our country. Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.” Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14^th Amendment, which at 434 words is shorter than most of these essays!

Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!

Your Fellow Patriot,

Cathy Gillespie

Tuesday, July 6th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 49 – Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention, From the New York Packet (Madison)

Colleen Sheehan, Federalist Paper 49, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Colleen Sheehan, Federalist No. 49, Federalist No. 57

Guest Essayist: Colleen Sheehan, Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good

James Madison wrote Federalist 49 in part as a response to Thomas Jefferson’s idea that a constitutional convention should be called whenever one of the departments of government oversteps its delegated constitutional authority.

Madison argued that this was a bad idea for five reasons: 1) the proposal doesn’t cover the case in which two departments combine against a third 2) routinely involving the people in rewriting the Constitution would reduce the veneration the citizens have for their laws and government, thereby destabilizing the polity 3) frequent appeals to the people’s fundamental authority would excite their passions and disturb public tranquility 4) if the usurpation of power was instigated by the legislative branch (which is the most likely scenario), it is probably these same men who would be elected by the people to the convention, since they are the public figures most familiar to the people – that is, they have the best name recognition and the most influence, which is how they got elected in the first place 5) if the people didn’t choose their legislators to attend the convention – perhaps because the usurpation of power by some of them was so flagrant – the choice of convention delegates would nonetheless be conducted in a turbulent atmosphere of partisan politics.

In the last case, Madison argued, it would be “the passions, therefore, not the reason, of the public [that] would sit in judgment.” But this is the exact opposite of how good popular government should work. According to Madison, in a well-constructed republic the passions of the public will be controlled and regulated by the government; in turn, the government will be controlled and regulated by the reason of the public.

It is important not to misconstrue Madison’s argument against frequent appeals to the people in this essay. He opposed frequent appeals to the people in their most sovereign capacity – which is what constitutional conventions represent. His claim is that convening a convention to change the Constitution every time there is an abuse of power by politicians is not the best or even, generally, a smart solution. Given that Madison was already a seasoned political leader (albeit only 36 years old) and a realist about human nature, he knew that this would mean a lot of conventions! He also knew that asking the people to reconsider and revise fundamental law on a chronic basis would agitate and destabilize public opinion, which is the very foundation of government and the effective rule of law.

It is important to note that Madison did not argue for a blanket rejection of an appeal to the fundamental authority of the people; indeed, he insisted that a path to constitutional change must be kept open to the people, to be tread on extraordinary occasions. This is of course the purpose of Article V of the U.S. Constitution, which establishes the constitutional amendment process. Moreover, his discussion of reverence for the laws should not be interpreted to mean that the people ought to venerate rather than vigilantly watch over their government. In fact, in Federalist 57 he will stress the importance of the vigilant spirit of the people in restraining government and safeguarding liberty. In the 49^th essay, however, Madison is warning his fellow citizens that we should not be unrealistic about the sway of reason in politics. Since most people are not disinterested or dispassionate philosophers, he implies here what he teaches throughout The Federalist: the achievement of reasonable and just public decisions is going to take substantial time and the hard work of communication and public deliberation. Essentially, Madison is saying, let’s be careful not to circumvent these speed bumps, which are constructed for our own safety. Let’s not be impetuous and race headlong at a dangerous pace. Slow and steady wins the republican race.

Colleen Sheehan is Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good.

Monday, July 5th, 2010

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 61 – The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members, From the New York Packet (Hamilton)

Federalist Paper 61, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Kyle Scott, Ph.D. 1. The Federalist Papers, 2. The Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Federalist No. 59, Federalist No. 60, Federalist No. 61, Kyle Scott PhD

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

In Federalist #61 Hamilton reveals his theory of constitutional construction in a peculiar way. Hamilton’s view of the role constitutions should serve is consistent with what modern political scientists consider vital for a long-lasting constitution. Constitutions, if they are to last, must be broad and treated with reverence.

The topic of #61 is a carryover from #59 and #60; for the first of these I have already provided comments. The reason Hamilton cannot leave this topic alone is because his opponents will not. Much of the Federalist owes its structure to the fact that Publius was engaged in an ongoing public opinion campaign. If Publius felt that it lacked public support on a particular facet of the Constitution because of an objection raised by an Anti-Federalist then Publius would write another paper on the topic. Because many of the objections are being levied by those who favor a more decentralized structure than what the Constitution proposes; Hamilton uses the states to his advantage. In this paper He shows that, as has been customary throughout the Federalist, the provisions which are incorporated into the Constitution also appear in some of the state constitutions. This is a successful rhetorical strategy albeit one that lacks some logical and philosophical rigor. For instance, while Hamilton never reconciles the Constitution’s inconsistency with the U.S. Declaration with regard to the location of elections, he does make it a more palatable inconsistency to show that the people of New York have dealt with this in their own state without causing much of a problem.

Hamilton gives a straightforward defense of placing the power to determine when and how elections are held in the latter-third of #61, something for which the reader has been patiently awaiting. Putting this power into the hands of the national government is a matter of political expediency. If the power were left in the hands of the states there would be little or no consistency with regard to elections and members elected to the House and Senate would begin their terms anytime between January and December depending upon when their state held elections. One could easily imagine what types of problems this might cause. Of course, Hamilton knows that there is an easy objection to his claim: Why leave the decision to Congress? Why not specify in the Constitution when all elections for national office are to be held? Hamilton’s response is where we see his theory of constitutional construction come through.

Hamilton objects to the inclusion of such a specification in the Constitution because he is open to the possibility that events and changes may occur that would require an amendment to the Constitution as it relates to this matter. If there are such events on a regular basis, amending the Constitution on a regular basis will become necessary. Hamilton does not want to see this happen. For if Constitutions are specific in their provisions, and they contain too numerous provisions, they will require constant amendment. Being so specific is not what Constitutions are for, but rather laws. Constitutions provide the scaffolding and the laws provide the brick and mortar. Moreover, the more we amend Constitutions the more feeble they become, if not in actuality, then at least in perception, which then leads to an actual weakening. If citizens and officials perceive their Constitution as weak, then the whole system runs the risk of collapsing. A Constitution must be held in reverence by the people and officials; which means it should not be tinkered with too much after it is ratified. Hamilton knew this, and so did the Framers who approved of Article V which made the amendment process so difficult and thus unlikely.

Whether we agree or disagree with Hamilton’s position that the threat to a just government comes from below rather than above, we cannot deny that his understanding of constitutional construction is accurate.

Wednesday, July 21st, 2010

Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.

March 6, 2011/0 Comments/by Janine Turner and Cathy Gillespie

Federalist No. 85 – Some Final Thoughts, From McLean’s Edition, New York (Hamilton)

Charles K. Rowley, Ph.D., Federalist Paper 85, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Charles K. Rowley PhD, Declaration of Independence, Declaration of Independence, Federalist No. 85

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

In writing about Federalist No. 85 – the final paper in a lengthy series of defenses of the proposed Constitution for the United States of America – it is entirely appropriate that I have just returned from a several day visit to Colonial Williamsburg. For that historic site epitomizes better perhaps than any other location in America – even perhaps than Philadelphia – the Spirit of Revolution and Reform that swept through the 13 colonies immediately prior to July 4, 1776, and that governed the constitutional discourse, both immediately following victory over the British Empire, and in the wake of the evident failure of those Articles of Confederation that had led the former colonies on their first nervous lap on the road to a full Union.

To hear once again those now-treasured words of Patrick Henry, Thomas Jefferson, and George Washington, in the very location where they were heard for the very first time, within the context of torn loyalties and divided families, is to recognize that a rare constitutional moment occurred during those immediate pre-revolution years between the passage of the Stamp Act and the military engagements to the North at Lexington and Concord. To watch as dedicated 21^st century young American visitors reenact key events, eagerly volunteering to serve in General Washington’s miniscule, rag-tag army, in the face of almost certain death and, as bravely defiant Williamsburg citizens, jeering at the Traitor, Benedict Arnold, following his military investment of the capital city of independent Virginia, is to feel pride, even as an Englishman, in the Spirit that will take George Washington’s army to its key victory over the British army of General Cornwallis at Yorktown, on October 19, 1781, and that eventually will make the United States exceptional in the eyes of the world.

So now it is May 28, 1788, almost 12 years since the Declaration of Independence, and 7 years since Yorktown. Alexander Hamilton, on this, day accepts the honor, and the enormous responsibility, of firing up that Constitutional Spirit in one concluding paper, in what has proved to be a lengthy, and occasionally rancorous, debate between the Federalists and the Anti-Federalists that he had formally initiated in Federalist No. 1, almost one full-year earlier, on October 27, 1787. Evidently, this is a moment that demands statesmanship of the highest order.

Will Alexander Hamilton fulfill that awesome destiny that he has shouldered so willingly? His task is delicately balanced between firing up the spirit of his readers by soaring rhetoric, while yet holding their feet to the glowing embers of political reality that evidently confront the emerging nation. For, this is not a fairy-tale, where everyone may expect to live happily ever after. On the other side of the fateful constitutional decision, there will be losers as well as winners, though not every one will yet know on which side of that divide he will eventually fall, or for how long he will so remain.

Hamilton rises brilliantly to his task, blending persuasive rhetoric with common-sense realism in a masterly contribution full of insights for those who would lead their state governments to a final judgment, yet written with a clarity that would be greatly appreciated by the People. His opening words focus succinctly on the two remaining issues under serious contention:

“According to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion, two points, ‘the analogy of the proposed government to your own state constitution,’ and ‘the additional security, which its adoption will afford to republican government, to liberty and to property.”

Even these issues, Hamilton recognizes, have been fully anticipated and discussed in the progress of the debate. He dispenses with these remaining concerns in two paragraphs that you can quickly embrace and which I shall here bypass.

The remainder of Federalist No. 85 focuses attention on what I shall call the ‘constitutional spirit’ that ought to govern the People and their state representatives in deciding whether or not to endorse the draft constitution. At a time well before the emergence of public choice, and extrapolating from a history of failed constitutions, Hamilton asks each individual to appeal to his better angels in approaching the constitutional decision, to raise himself above the level of politics as it is, to a meta-level of rules that will delineate the very nature of the politics that must play out within its limitations:

“Let us now pause and ask ourselves whether, in the course of these papers, the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it, and whether or not it has been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty, from which nothing can give him a dispensation. ‘Tis one that he is called upon, nay constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country or to his posterity, an improper election of the part he is to act.”

These are powerful words of persuasion. But Hamilton does not rely on rhetoric alone. He knows instinctively, well before a relevant public choice literature has emerged, that individuals require little prodding so to behave. If the constitution is adopted, together with the amendment process that it prescribes, it will be of long duration, it will survive, indeed, well beyond the life-span of any individual. Even though each individual may be well aware of where he stands at this time, what he expects to lose and to gain by his actions, he cannot foresee the future. He cannot know what will transpire for his offspring, and for their offspring, into an indefinite future. As such, the edge of narrow self-interest is naturally blunted, and a nudge rather than a shove is all that is required for man to rely upon his better angels in the constitutional moment that he immediately confronts.

So what now is left? The proposed constitution, as Hamilton well understands, is a compromise carefully constructed by a dedicated convention at Philadelphia. It will not be perceived as perfect, perhaps, by any man, surely not by many. The urge to make perfect in a naturally imperfect world must be contained, because unattainable perfection must always prove to be the deadly enemy of the feasible best. Hamilton addresses this issue transparently and to powerful effect, distinguishing between the writing of an entirely new proposed constitution and the amending of a constitution that has been agreed-upon. Writing again well in advance of public choice insights, Hamilton seizes on the essence of this difference:

“We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form the majority on one question may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact; and hence also an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act.”Hamilton does not have to remind his readers of the great fortune of the convention in Philadelphia in meeting in a building carefully protected from all external interference – the streets themselves were covered with straw to deaden the sound of passers-by – in meeting under the magisterial leadership of George Washington, in meeting under the brilliant intellectual guidance of James Madison, the Father of the Constitution, with the energetic presence of the First American, Benjamin Franklin. Such favorable circumstances surely would not be replicated in any second attempt. In their absence, chaos might well be expected to ensue.

So, Hamilton reminds his readers of how much simpler the Article V amendment process is designed to be, focusing as he anticipates, on one issue at a time, with qualified majority, rather than unanimity, its prescribed mechanism, and with the convention route available to bypass any danger of Congressional resistance to state initiatives. Hamilton is aware that 7 out of the 13 states are already committed to the great enterprise. His final paper is a brilliant and ultimately successful exercise to bag the remaining 6. The threat of anarchy, should the venture fail, proves to be sufficient to mollify dissent and to complete the Union.

Because this is the final Federalist Paper, and I have the advantage over Alexander Hamilton of being able to look back on the constitutional achievement of the Founders, let me close with some brief thoughts on what has transpired over the two centuries and more of its existence.

The Constitution itself is a triumph, a remarkable document forged by brilliant political philosophers. Foremost among the Founders was James Madison, who, prior to the Philadelphia convention, studied what was wrong with republics, old ones and new ones, how they failed and why they were failing. He studied what was wrong, and why they failed, so that he could create a republic that would not fail. For the most part, he was successful. The parchment of the constitution is as good as it could be.

It is now badly tattered, not because the Founders failed, but because their successors too often have twisted its meaning. The Founders for the most part were devout Christians who understood that man’s creation operated under Divine guidance. The United States prospered and grew in freedom under Divine Providence. It has fallen on darker days as secular notions of Manifest Destiny have replaced those of the Divine.

The United States prospered and grew in freedom when the checks and balances of the Constitution each played their designated role in preserving a strictly limited government of enumerated powers, and when states rights were honored according to the Constitution. It has fallen on darker days as Congress has relinquished many of its powers to create an Imperial Presidency; and has stretched across the constitutional divide to seize powers that do not exist; and as the Congress and the Presidency, acting in concert, have crushed states’ independence.

The United States prospered and grew in freedom when the Judiciary honored the words of the Constitution and construed the words of the parchment in accordance with original intent. It has fallen on darker days since the Judiciary has rendered the words of the parchment meaningless in an attempt to pursue social and economic agendas never contemplated for the federal government by the Founders.

That is why this project on Constituting America is so important at this time of grave uncertainty for the future of this nation. It is for the youth of America to reaffirm the Spirit of America that has been so sadly disregarded by its elders, and to return the United States to the Divine Providence that is the life-spring of its People’s greatest achievements.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia. He is co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government. The Locke Institute (www.thelockeinstitute.org). He blogs at www.charlesrowley.wordpress.com.

August 24, 2010/0 Comments/by Janine Turner and Cathy Gillespie

Articles IV – VII of the U.S. Constitution

Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Joerg W. Knipprath 2. The Constitution, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article I, Article II, Article III, Article IV, Article V, Article VI, Article VII, Joerg W. Knipprath, The Articles of Confederation

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Articles IV through VII of the Constitution are, even for many educated Americans, terra incognita. People may know about the first three articles, important as they are in defining the separation of powers at the national level among the three branches and in drawing basic divisions between the national government and the states. Despite their brevity, these often-overlooked articles play significant roles.

When the Constitution was adopted, the framers hoped, as the Preamble declares, to form a “more perfect Union.” They recognized (in part out of political calculation) that a union already existed under the Articles of Confederation. They wanted to tweak the system enough to place it on a sounder political and economic footing. Part of their plan was to give more independence to a revamped United States government, as the first three Articles demonstrate. But, given the size of the republic and the dispersion of its population, the national government was expected to remain a comparatively restrained political player. While the suspicion over “consolidation” was often in the open, the enumeration of formally limited powers and the practice of a part-time Congress were evidence of the expected state of affairs.

Quite naturally, then, much was left to the constitutional domain and the political discretion of the states. Inter-state collaboration and cooperation were practical necessities. Half of Article IV deals with that fact of political life. The “full faith and credit” clause of Section 1 and the “privileges and immunities,” “extradition,” and (now superseded) “fugitive slave” clauses of Section 2 are testaments to the Framers’ concerns about potential interstate frictions that might undermine union. All but the last were also in the Articles of Confederation, and the same continue to be significant today.

One area of potential constitutional conflict in the future is whether or not a state that does not recognize same-sex marriage is constitutionally obligated to give full faith and credit to a same-sex marriage granted in another state. Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case, though there is some judicial precedent for the position that a state need not recognize an act of a sister state that is repugnant to its own public policy.

The other half of Article IV deals with obligations of the federal government to the states. In little more than 100 words, Section 3 sets forth Congress’s powers to create new states and to dispose of territory and property of the United States. That section was the source of critical federal policies during the great westward push under Manifest Destiny through which unorganized territory became organized and, eventually, advanced to statehood.

Section 4 obligates the United States to guarantee to each state a republican form of government, to protect each state against invasion, and to render assistance against domestic violence if asked. The state of Arizona may well ask whether the federal government has breached that second obligation in failing to protect the border against armed marauders, thereby necessitating the state to take stronger actions against illegal aliens. The last part of Section 4 is one explanation for why the federal military response to Hurricane Katrina was so “late.” The federal government was constitutionally obligated to wait for a request from the governor for assistance, a request slow in coming.

Article V may be the most important part of the Constitution, as it provides the formal means of amendment. This was an area of laborious compromise and reflects a combination of experience with the Articles of Confederation and the various state constitutions, and the development of American constitutional theories of popular sovereignty that broke with English constitutionalism.

There are two methods of proposing amendments and two methods for ratification. The method used for all amendments to the Constitution, though not for the drafting of the Constitution itself, is to have a vote by 2/3 of each house of Congress. Though the matter is constitutionally not free from doubt, by long-accepted practice, the president’s signature is not needed. Many framers feared, however, that the Congress would not advance amendments that might curtail federal power. Hence an alternative permits 2/3 of the states to petition Congress for a convention to propose amendments. Though this method has not been used, some proposals have come close. There are almost the needed number of states for a balanced-budget amendment, a matter that is taking on added urgency in view of trillion dollar deficits.

If an amendment is proposed, 3/4 of the states must approve, either by legislatures (a “republican” principle) or state conventions (a “quasi-democratic” principle), as Congress directs. All but the amendment to repeal prohibition have gone the legislative route. These supermajority requirements were a compromise between the English constitutional theory (also used in early state constitutions) that allowed constitutional change by simple majority vote of the legislature and the unanimity requirement for constitutional change under the Articles of Confederation. The Constitution, the Framers concluded, must be amendable, but not so freely as to promote instability. Note, though, that the Constitution does not have the “democratic” option of amendment by petition or vote of the people directly, as many states have.

Article VI contains a pillar of our federal structure, the “supremacy clause.” That clause makes the federal Constitution, treaties, and statutes superior to conflicting state laws. The clause is an enhanced version of a blander clause in the Articles of Confederation. It enshrines a principle central to the revised structure of the Constitution, that of a sovereign United States independent of, and—within its delegated functions—superior to, the states. From a political perspective, it is not an overstatement to say that, for better or worse, this is the most significant provision in the development of the current (im)balance that exists between the national government and the states.

Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. That provision recognizes that, since the Supreme Court is the only constitutionally required federal tribunal, state courts might operate as inferior federal courts. It also creates a judicial “branch” that straddles the divide between federal sovereignty and state sovereignty more than the political branches do.

Article VII provides for the process of ratification. There are many fascinating historical undercurrents at work in the Article. First, it encapsulates the revolutionary nature of the process that led to the Constitution. It must be recalled that the Articles of Confederation required that the Congress approve any amendment, which then also had to be approved by the legislature of each state. Also, the charge from the Confederation Congress to the Convention was “for the sole and express purpose” of reporting to Congress and the states proposed revisions that still had to be approved by Congress and the states, all in conformance with the existing structure.

The Framers, however, created a completely new structure to replace the Articles. In Article VII, they made it sufficient for initial ratification that only nine states approve. In the resolution to send a courtesy copy to the Confederation Congress, the Philadelphia Convention very pointedly required approval by the states but not the Congress. Moreover, the approval was to be by conventions in the states, not by the legislatures.

The non-unanimity requirement is significant because the Framers faced a practical problem. Rhode Island was so opposed to the project that they had not even sent delegates. They were, therefore, hardly likely to approve. Rhode Island’s non-attendance, by the way, is one reason why the Committee of Style changed the Preamble of the Constitution from “We, the people of [then listed the states]” to “We, the people of the United States.” Moreover, the Articles had taken four years to approve. The concern was that unanimous approval would encourage a similar delay. Delay works against constitutional change, as the supporters of the Equal Rights Amendment found out in the 1970s. The Framers gambled that adoption by nine states would create its own momentum for adoption by the other four. The gamble worked, but it turned out to be a close-run thing.

The requirement for conventions was both practical, in that the anti-Constitution forces were more likely entrenched among the political interests in the state legislatures than among more broadly selected conventions. Conventions also reflected better the emerging American political theory that, while legislatures made ordinary laws, constitutions were expressions of shared fundamental political values that went to the very purpose of government. Constitutions, then, were social contracts resting on more direct exercise of popular sovereignty. They were, in the words of George Washington, “explicit and authentic acts” of the people. Since the entire population of a state could not be brought together to deliberate and vote on the Constitution, a convention selected for that purpose from the people of the state was the next best alternative.

A final oddity in Article VII is that the signatories made a rather sterile declaration of witness. In the Articles of Confederation, the signatories declared that they fully ratify and confirm everything said therein and pledged their constituents’ support. In the Constitution, the signatories merely attest that the “States present” (i.e., no Rhode Island) unanimously approved the Convention’s actions. A number of delegates had left the convention because they personally disapproved of the result, as did some of those who remained to sign. In this manner of attesting, there was no personal commitment of support that could prove politically problematic back home. It is like being a witness to a will signing. The witnesses merely attest that the process, such as having the testator sign the document after declaring it to be his will, was completed properly. The witnesses are not declaring their support for the substance of the will. Therefore, if the testator disinherits his family and gives everything to his golf buddies, the witnesses are not morally implicated.

In the end, it was somewhat of a political miracle that the Constitution was adopted at all. It is not a perfect document, and, had the people then been able to see the political reality in which it operates today, they might well have preferred something else. But it endures for many as a symbol of what should be, not only what is—the idea of the Constitution as much as its function.

Monday, April 26th, 2010

Professor Joerg W. Knipprath

http://www.swlaw.edu/faculty/faculty_listing/facultybio/114010

Southwestern Law School

Los Angeles, California

Posted in Articles IV – VII of the United States Constitution, Constitutional Scholar Essays | Edit | 47 Comments »

47 Responses to “April 26, 2010 – Articles IV – VII of the U.S. Constitution – Guest Blogger: Joerg Knipprath, Professor ofLaw at Southwestern Law School”

Daniel Smith says:

April 26, 2010 at 12:45 am

Could states like California and Texas, with the approval of Congress, be divided thereby avoiding the presidential problem of 2000.
Shannon C. says:

April 26, 2010 at 6:28 am

The supremacy clause allows Federal Law to supersede State’s law. But doesn’t that mean the state’s don’t have to adhere to federal law if that federal law is unconstitutional-such as mandated healthcare?
Shannon C. says:

April 26, 2010 at 6:28 am

Do states have the right to secede from the Union?
Susan Craig says:

April 26, 2010 at 7:13 am

The provision for states to propose amendments makes a Constitutional Convention a lot more likely in the present situation as I (and I think most) thought it would entail a redo of the entire document. As I read it, at the next Governors meeting they could convene a convention specificly to draft a balance budget amendment or a strengthening of the 10th amendment change to put before congress. This makes the objections to a ConCon less daunting.

I, also, appreciated the reminder of the drafters humanity with the inclusion of the errata sheet in the last article.
Reed W says:

April 26, 2010 at 8:00 am

Thanks for clarifying and bringing it all into current events.
Carolyn Attaway says:

April 26, 2010 at 9:06 am

@Shannon – according to sources, Texas v. White, 74 U.S. 700 (1869) was argued before the United States Supreme Court in 1869. The Court held in a 5–3 decision that the Constitution did not permit states to secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”. However, the decision did allow some possibility of the divisibility “through revolution, or through consent of the States”.[29][30]

I find the last line fascinating, given all the current legistlation that is being formed in many states since this current administration came to office. It seems the 2 major issues, healthacre and immigration have caused the most uproar given the current number of states suing the federal gov’t over the healthcare mandate and commerce laws, and the new immigration law that was just signed in Arizona.

However, all states appear to be working on their State Legistlation to prepare for any possible future conflicts with Federal Law. For example on April 1, 2009, (as I understand it) the Georgia State Senate passed a resolution 43-1 affirming states’ rights based on Jeffersonian principles; and for other purposes. Acts which would cause a nullification of federal law include, but are not limited to:
Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press, and Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.

It will be interesting to follow the Supreme Court procedure regarding States Rights in the HealthCare Case. And as I understand it, the healthcare law cannot be challenged until it goes into effect and some one or entity is harmed by the law. Such as a shareholder of a company that goes out of business due to the costs/taxes imposed by the law, they can sue the gov’t for theft. Also, the commerce laws makes no provision to force someone to engage in interstate commerce.

Also, I appreciated the point made about the Federal gov’t being constitutionally obligated to wait for a State Governor’s request for assistance before intervention can be enacted. The contrast between Katrina and Arizona is striking regarding the assistance from the Federal Gov’t.
Susan says:

April 26, 2010 at 9:13 am

This is so interesting. Yesterday, my husband and I were having a discussion about the new immigration law in Arizona. I see it as unconstitutional and he see’s it as the state having to do something since the Federal Government has not fulfilled its obligation. We had to agree to disagree on this one.
Robert Shanbaum says:

April 26, 2010 at 9:15 am

Shannon C. wrote, “Do states have the right to secede from the Union?”

Apparently not. See, U.S. Civil War, 1861-1865; an example of a Constitutional dispute not settled by the judiciary.
Robert Shanbaum says:

April 26, 2010 at 9:34 am

Susan Craig, I don’t see where a “Governors meeting” could enter into any call for a Constitutional convention – a petition by “the Legislatures of two-thirds of the several states” is the requirement. The executives of the states are left out of the process.

Note that there’s no language that suggests that there would be any limit to the amendments that could be proposed at such a convention.

There’s a requirement in the Connecticut Constitution that requires, every 20 years, a referendum on whether to hold a constitutional convention to amend (or conceivably replace) the state constitution. This was most recently held in 2008, when 59% of voters answered “no.”

The reason the question failed, I think, is that it was seen as likely to attract activists – persons having one axe or another to grind – to a disproportionate degree. In the pursuit of one’s objective by that means, one runs a substantial risk of getting something one doesn’t want .
Robert Shanbaum says:

April 26, 2010 at 9:50 am

By the way, Shannon C., you may be interested in Andrew Jackson’s response to your question, given 33 years before the issue was settled with finality:

http://avalon.law.yale.edu/19th_century/jack01.asp

Jackson could run on; here’s the most apposite passage:

But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.
Susan Craig says:

April 26, 2010 at 10:15 am

State Suffrage? Hasn’t that been abrogated by the XVII amendment? Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The only thing that has been changed is that the State has been deprived of its Suffrage by the XVIIth amendment which removed from the state the right to select its Senators.
Mike Lowry says:

April 26, 2010 at 10:17 am

Article V is my favorite part of the entire Constitution, for it puts into the hands of the states a way to bring our runaway Congress back under our control. We need additional amendments to:
1. Impose lifetime term limits of 12 years on Congress
2. Impose a requirement for a Balanced Budget
3. Repeal the 16th Amendment and force implementation of a consumption tax(i.e., the Fair Tax.
4. Impose Congressional integrity that: (a) forces a statement of Constitutional authority to be attached to every bill, (b) forces an affidavit that they have read and understand every bill, (c) prevents them from exemting themselves from any law, and (d) prevents them from enacting any program for themselves that is not available to the general public.
Ron Meier says:

April 26, 2010 at 10:52 am

Thanks, your comments provide some interesting additional color and current relevance that I had not picked up on my initial reading and note taking.
Susan Craig says:

April 26, 2010 at 11:15 am

There is an annual meeting of Governors. If at this years convocation of governors, they got 34 of them to agree that an amendment was needed (say on clarification of the commerce clause, immigration or a balanced budget) would that be a call to convene a Convention for that limited purpose?
Lillian Harvey says:

April 26, 2010 at 11:23 am

I was thinking the same thing, Susan, after reading the Articles and Prof. Knipprath’s blog. Given the political climate today, we certainly can not count on Congress to act on behalf of the People as their will appears to serve the interest of their political party and ideology instead. That’s my opinion anyway. I also don’t feel we could count on all the state legislatures for the same reason. But, some guidance on setting up conventions within the States would be a start.
A question for the participants: if you were part of a constitutional convention in your state, what issues would you want addressed? Where do you think our biggest problem is? The one condition I would suggest is that the 50 United States remain intact, as I believe our strength has always been in our unity.
ERL says:

April 26, 2010 at 11:49 am

Could the State Legislatures limit the agenda of a Constitutional Convention? For example, could 2/3 of the states approve a resolution calling for a convention, but only to consider specific amendments? Any other topics would be off-limits, and the state delegation would be given strict instrutions to withdraw if any other topic was discussed. The only amendments that could be discussed and acted upon would be those approved by at least 2/3 of the states.

This would be a means to “control” a convention, and prevent it from spiraling out of control and overthrowing theConstitution itself.

This method thus imposes three “filters” (or checks, if you will), on a Constitutional Convention.

First, the agenda items would have to be approved by 2/3 of the states. No other topics would be permitted.

Second, the Convention, made up of delegations from each state that chooses to participate (even if they did not approve a resolution calling for the convention in the first place), would debate each proposed amendment. The Convention would decide (by majority vote) whether to propose an amendment, and would also approve the final language of the amendment. The debate at the convention would thus be a second “filter” (or check).

Third, any proposed amendments would be sent to the States for consideration (either by state legislatures, or by state conventions). This would provide the third “filter.”

Finally, the Convention would be public, and would probably generate a great deal of media coverage and discussion. This openness would serve as a sort of “brake” on the convention, because the public would not accept a radical departure from the Constitution.
Shannon C. says:

April 26, 2010 at 1:57 pm

Lillian Harvey , I live in Georgia. My desires would be the following Amendments:

1. Balanced Budget
2. Term Limits-one term each, as I am so anti Congress:)
3. Repeal the 16th Amendment and say a human’s labor cannot be taxed (income tax). A consumption tax would be my choice.
4. Reword the 10th Amendment to make it understandable to the Big Government Lovers: If it isn’t in theConstitution, stay out of it!
Susan Craig says:

April 26, 2010 at 2:16 pm

I feel the relevant portion is as follows; on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; If called for by their governors the individual states legislatures concurring would constitute a call for such a convention and it also says nothing about needing to start from scratch the scope could be as confined as necessary.
Thomas Soyars says:

April 26, 2010 at 3:00 pm

@Susan — can you point out a section of the Constitution that makes the Arizona law unconstitutional? What about Article IV Section 4. “and shall protect each of them against Invasion” Look sto me like the federal government has failed in their duty and the state is taking it upon itself to remedy the problem. Congress has also failed to “establish a uniform Rule of Naturalization” (Article I, Section 8).

@Mike Lowry I agree with most of your recommendations but I have a problem with a balanced budget amendment that is too strict. There may be times (war, severe natural disaster, economic upheaval) that would require the government to run a temporarily unbalance budget. I would propose a measure that teh government be required to have a balanced budget over a rolling five year period. That way you could run a deficit in one or more years and be able to make it up in other years. It would give more flexibility but still provide for a balanced budget overall. I would also add an amendment that the federal government cannot pass unfunded mandates onto the states.

@Joerg Knipprath — the best blog yet (in my humble opinion).
Joe Rech says:

April 26, 2010 at 3:13 pm

-Term limits – three for House, two for senate, two for Pres. Retirement gained in thirds for House, halfs for Senate and Pres.
-Balanced budget – except in times of national emergency (disaster or war)
-Repeal taxes – any current taxes enacted for a specific purpose and that purpose no longer exists, immediate repeal.
-VAT replace income tax, started at some level like 11% and NEVER to exceed 17%, not always levied on all levels of production and not always the same on all products (can be 11% on food, 17% on yachts?)
-limits on other taxes – 25% inheritance tax on $1mil or more, cap gains tax limits 15%
-reiterate oath – support and defend the constitution – not interpret the constitution.
Donna Hardeman says:

April 26, 2010 at 4:04 pm

Lillian – I agree with Shannon’s List (which is almost identical to Mike’s list). The one thing I would point out, however, is my belief that Congress – either house – be allowed 2 terms. I believe you need some members in Congress who are not “lame ducks” i.e. who know they will have to vote with the will of the electorate if they expect to get elected again. However, by denying the long term benefits of continued “service” we would be denying the chance to get so firmly embedded that political favors, etc. become more important than the people.

Susan – could you clarify your point about Suffrage being denied? I’m responding to what I think you said but am not totally sure I understood you. Suffrage (voting) rights in the U.S. Senate have not been denied to the States. All States still have 2 Senators representing them. What changed was the manner of selecting the Senators. Originally it was the state legislature and now it’s by popular vote.
Shannon C. says:

April 26, 2010 at 4:33 pm

Suasn Craig, You tell ‘em! Good points. Man, I am so glad this site exists. The only thing I wish was a little different is if the guest bloggers could opine in on a few of these a few times a day to answer a few questions.

Great site!!!
Donna Hardeman says:

April 26, 2010 at 4:46 pm

Susan – you and your husband seem to be on 2 different issues in discussing the immigration law. He is certainly correct in saying Arizona took action because the federal government wouldn’t. You may also be correct in saying it’s unconstitutional. Problem is, I couldn’t find the actual text online so I can only comment on what news is out there. It has been suggested that immigration laws are federal rights and not states’ rights. However, if the Arizonalaw simply mirrors the federal law in making it a state crime to be in Arizona illegally, I don’t think this would pose an issue. Also, it’s been suggested that you can’t racially profile by stopping someone solely for the purpose of checking identification. Jan Brewer claims the law simply requires identification to be carried so proof of legality can be shown if someone is stopped for a crime. This also would pose no constitutional problem. If you figure out where the text is, let me know and I can blog a little more intelligently on the subject. Do you have a specific challenge to the constitutionality?
Carolyn Attaway says:

April 26, 2010 at 5:01 pm

Hello Shannon C. from a fellow Georgian!

Our State has to have a Balanced Budget, so I agree that those same rules should apply to the Federal Gov’t. The Pay As You Go is a complete disaster and Congress cannot even stick to their own rules.

I think it should be a 2-term limit, just because I personally feel that 1 term is not enough time some really good congressmen need to get issues addressed and completed. However, I feel every congressman should pledge to uphold the Constitution, and that impeachment should be allowed if they abuse their time in Congress.

Along with the 16th, I think the 17th Amendment should be repealed. Senators should represent their State’s interest, and quite going rogue.

The 10th Amendment can be reworded to be more specific, but I think the problem lies with the States giving to much of their power away in exchange for funds. Over time, all those little crumbs they have been throwing away to the Fed. Gov’t, have now been gathered together, and the States are realizing half their bakery is gone, and managed by someone else.
ERL says:

April 26, 2010 at 5:38 pm

Another amendment that should receive serious consideration is a “Single Topic Legislation” requirement. Several states have a provision that each bill considered by the legislature must have a single topic only. So-called “omnibus” bills are prohibited, as are “earmarks” and “riders” that are unpopular expenditures attached to an important bill. (The Stimulus Package passed last year was a hodgepodge of pet projects. It is unlikely that those projects would pass if they stood alone).

In other words, every proposal considered by Congress would have to stand or fall on its own. This would help reduce deficit spending by forcing Congress to look at each proposal separately, and not as small earmarks on a gargantuan bill.
Debbie Beardsley says:

April 26, 2010 at 5:46 pm

“Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. ” I am taking this to mean that the states must follow Federal law at a minimum. If so, how and why are the states allowed to “decide” to not follow federal law. Ie, California and the medical marijuana or the wonderful mayor of San Francisco declaring a sanctuary city????? Doesn’t this behavior and the lack of action on the part of the government a big slap in the face to the Constitution?

I am loving reading and learning but at the same time it is very disheartening to see how far away from theConstitution we have strayed.
Chuck Plano, Tx says:

April 26, 2010 at 5:57 pm

In regard to Texas being able to devide itself as was suggested by someone, reference California and Texas dividing in order to prevent a repeat of the 2000 Presidential election, Texas has that right as stated in the Joint Resolution for the annexiation of March 1, 1845 . This right was mantained and specifically quoted in other settlements of border disputes with Mexico in the Treaty of Gadulape Hidalgo and the Treaty of The Gadsden Purchase. This is only one question regarding Texas as Texas entered the United States as a free and Soviourn Nation and yet it’s annexiation was by joint resolution and not a treaty. The Senate rejected a treaty to annex Texas four times in 1844 so did Congress have the right under the Constution to Annex a Nation?? The Constution is silent on this as it refers to territories, article IV Section 3, and not nations.
Andy Sparks says:

April 26, 2010 at 6:53 pm

@Robert: Does might make right? Historically there have been many occasions where states have threatened secession: some of the western states when it seemed the U.S. would support a Spanish decision to close off the Mississippi during the early days of the Republic, some radicals in the New England states during the War of 1812, Thomas Jefferson even initially had secessionist language in the Kentucky Resolutions he drafted in 1798 (he was convinced to remove the offending passage before it was submitted). Why would parties threaten to secede if they didn’t think it was a viable option. While the Texas vs. White case put a law on the books regarding the legality of secession in 1869 after the Civil War, it would be interesting to see if it could be held up if challenged. The fact is that the Constitution is fairly quiet regarding the constitutionality of the issue.
Donna Hardeman says:

April 26, 2010 at 6:55 pm

Guest bloggers coming in at the end of the day to review some of the comments and questions is a supremely good idea. Shannon – I must admit, it had occurred to me also but I’m glad you put it in writing. Maybe this idea could be incorporated into our learning process. We all have great comments and questions but the experts here could help.
Susan Craig says:

April 26, 2010 at 7:50 pm

States Suffrage has been taken away and another Representative has been put in the Senators place. As I read the original articles the House of Representatives was to have been the representative body of the ‘vox populi’ whereas the Senators were to be the corporate representation of the State as a corporate whole. Now there is no longer a corporate representation of the the State but another directly selected Representative of the people.
WeThePeople says:

April 26, 2010 at 8:07 pm

Making it so that 2/3 was needed for ratification seems very strategic to me. It seems that the government enjoys that they don’t need everyone’s approval. (As in the 3/5 Compromise in 1787– WHY would being black ever make you less of a person?) I also appreciate that in Article 6 it is stated that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” If religious discrimination isn’t acceptable in government, why is it still so prevalent?
If one state has a controversial law, like legalizing same sex marriage, would holding a convention be the first step towards creating an amendment? After that it would run through both the houses and then to the people…
Lynne Newcomer says:

April 26, 2010 at 8:27 pm

Hi all, great stuff again.AZ,Govner is a brave soul, she has pushed the hand as no one has managed to.After reading J, Knippraths comments it seems to me that in Art.4 section 4,(protection fom invasion) might be the key in fighting for the Constitutionality of the States new law.However I have this nagging feeling that there is probably grounds to overturn it… in that perhaps it could be construded that the long, long history of NOT inforcing the laws that are on the book already my be percieved as consent.On top of that when an act that is against the law is ignored, people begin to think of it as “their right” to continue an set aside the law they know exists,but have rendered it without any reach.
Is this the reason that the laws have been ignored so long, was this the grounds that were maturing as the years wore on( I know that sounds like conspiracy stuff)but I find no sense is the past lack of willingness to act by DC.
Constituting America says:

April 26, 2010 at 8:32 pm

hey! It’s Janine Turner. I agree! I would LOVE to get the Constitutional Scholars of the day to chime in at least once more during the day to answer questions. This was my original intent. I am working on it! I am so glad y’all have joined our blog. Isn’t it wonderful to have this opportunity to study our Constitution. I am learning so much – such as why the Preamble states, “We the People of the United States..” That’s a cook piece of trivia. Yes?
Shannon C. says:

April 26, 2010 at 8:58 pm

Janine, GREAT thing you are doing. As a dad of two little girls, this is so important for their futures.

Can someone tell me if I have this right? The Supremacy Clause, as I understand it, means that federal lawsupercedes state law. However, I take the last sentence to mean in today’s language , “UNLESS the federal law is unconstitutional or goes against an existing state law.”

My point is, just because the federal government mandates somthing like healthcare purchasing, that does not mean it is constitutional.

Any thoughts?
J.D. Wiggins says:

April 26, 2010 at 9:12 pm

Please comment on Article VI “Supremacy Clause.” Couldn’t this be used as a back door for making the Second Amendment null and void?
Joerg Knipprath says:

April 26, 2010 at 9:51 pm

There are a lot of terrific questions here. I wish we could have a seminar to discuss them all. Let me just address a couple. ERL asked whether the states could limit a constitutional convention to a particular topic. If 34 states call for a balanced budget amendment, technically Congress would call a convention to discuss only that topic. But what if the delegates decided to push further? This is unknown territory, and why most constitutional law professors and most politicians oppose this method. It is less the states than the Congress that is likely to fear a run-away convention. Congress could refuse to forward to the states anything that went beyond the charge to the convention. However, there is a precedent for a run-away convention going beyond their charge and then submitting their product directly to the states. That would be the Philadelphia Convention of 1787. Their action is based on the 18th/19th century theory of popular sovereignty that the people, as soon-to-be Supreme Court Justice James Wilson said at the time, “The people may change the constitutions whenever and however they please.” Kept within the context of Article V, this is not even that radical. Could the people change the Constitution outside Article V, simply by gathering in convention (say, a huge town hall meeting over the internet)? That issue was argued before the Supreme Court in 1849, arising out of just such an attempt to adopt a new constitution in Rhode Island (which controversy produced a small “insurrection”—the Dorr War). The attorneys, including Daniel Webster and other high-powered talent, argued the issue of popular constitutionalism exhaustively; the Supreme Court then ducked the issue, deeming it a non-justiciable political question not suited for the courts. There is insight in that. Ultimately, these basic constitutional issues are political. Could today’s Congress refuse to pass along other constitutional changes demanded by a convention, without appearing to disregard popular will? The Confederation Congress couldn’t oppose the political appeal of the Convention’s action. On the other hand, today’s Congress may not be as sensitive to the popular will.
Joerg Knipprath says:

April 26, 2010 at 10:13 pm

Let me answer a couple more. The single topic issue. There is a historical argument exactly like that. It arose out of the “line-item veto” controversy, when Congress in the 1990s tried to give the President a limited line-item veto over certain budgetary and tax issues. The Supreme Court found that to be unconstitutional. One argument in support of the law is that the Constitution requires each “bill” or joint resolution to pass both houses and be presented to the President. Some historians analyzed the term and argued that, at the time of the founding, the meaning of “bill” was understood to focus on a single subject. Plausibly, that would have required each budget item to be approved separately, rather than as one “Omnibus Budget Bill.” However, the practice since nearly the beginning has been to allow bills to address more than one subject.
Merely having governors call for a convention is not enough. Legislatures have to act. Do legislatures have to phrase their petitions identically? Or just enough for Congress to get the message? Again, that is ultimately a matter of political pressure. Could states rescind their petition before a convention is called? Probably yes.
As to the Supremacy Clause, for the states to be bound by a federal law, it would have to be constitutional. But sometimes states are prohibited from acting, even if there is no specific federal law against them. Sometimes the mere existence of a federal power in the Constitution prevents a state from acting is the state’s action conflicts with the purpose of the provision in the Constitution. That’s called “dormant federal power” theory. If the Constitutionis said to make a certain power “exclusive” in the federal government, the states cannot act in that area at all. One possible example is the federal power over immigration and naturalization. That is one potential problem for parts of the AZ law. If the Constitution intends for federal power to be exclusive, then states cannot act even in trhe absence of federal regulation or even in support of similar federal law. I have posted about this further on my blog.
Robyn says:

April 27, 2010 at 12:19 am

ERL, I agree with a Single Topic/Issue Legislation. Not only would the ‘we, the people’ see the text (hopefully), we would also know who supports the legislation (or is beholden to special interests/lobbyists. And need I say, it would be a short bill! KIS – Keep It Simple!
Lillian Harvey says:

April 27, 2010 at 4:19 am

Hi Georgians and others… Virginian here ). These are my thoughts on the Constitutional Convention.
First fix some problematic fixes: Repeal the 16th and 17th Amendments.
-Repealing the 16th returns to Congress the authority to impose import and excise taxes only. How they work within that framework would be an interesting national discussion, whether it be through VAT or Fair Taxation. One thing I like in the Fair Tax proposal is that the percentage of your purchase that is the tax is on your sales receipt. If it is increased, the consumers, We the People, can demand to know why. I am against the Flat Income Tax because we all know that flat tax percentage will increase. Repealing the amendment that allows income to be taxed is critical to me.
-Repealing the 17th would put Senators back to work for the States they represent. If they are going to be there forever, they better be working for the State legislatures that sent them instead of a political party machine.
-I would love to see the language clarified on the recess appointments clause. If the Executive can’t get an appointment through the Senate during regular sessions, there is something wrong with the appointment. It sets up too much game playing and distracts from the work that needs to be done. Although worrying to me, it is not as important as the repeals of the aforementioned amendments. I am in a “less is more” mood.

From what the Professor has written, the Omnibus-type bills Congress seems to love appear to be the source of our budgetary problems. When I think about it, the greatest objection to the Healthcare bill was its size and scope. The call to kill that bill and deal with each component separately so the issues of access, cost and the overall impact on the economy/businesses could be better anticipated was the loudest from We the People. But the Executive and Congressional leadership absolutely refused to do this. Why?
Now we are in a real mess. You can’t just repeal the bad parts; the whole thing has to go. And it is my belief that it should. If the Congress can not do something correctly, that power to manage these issues should remain with the States. Then Congress can clean up their act or we clean up the Congress in the next election cycle.
Is there a way to write constitutional language insisting upon one bill, or issue, being dealt with at a time? It seems that the Supreme Court ruling against the line item veto was based on the notion of Congress legislating one issue at a time. Since that is not the case, is the Supreme Court decision relevant?
Shannon C. says:

April 27, 2010 at 6:32 am

Mr. Knipprath, thanks for your willingness to come back and answer some questions!!! You did a good job.
Gitel says:

April 27, 2010 at 7:16 am

@WeThePeople – nobody ever said being black made someone “less of a person.” Remember, the more people in the state, the more representatives the state receives. The problem was if black slaves were counted as part of the population, the southern slave states would be entitled to more representatives. The northern states were against that. Of course, the southern states wanted to count the slaves so they could have the extra representatives.

The compromise was made so the south wouldn’t be “over-represented” in the northerners’ view. It never says anywhere in the Constitution that a black is “less of a person.”

Practically speaking, a state would get 1 representative for 30,000 white citizens, but it would take 50,000 black slaves to get another representative.
Robert Shanbaum says:

April 27, 2010 at 9:58 am

@Andy: I do not think that “might makes right”, but I think that might sometimes makes fact.

As you suggest, the Constitution itself is silent on the issue, although one can trace the commitment to a “perpetual” union stated in the Articles of Confederation through the “more perfect union” objective stated in the Constitutionas one approach to arguing in favor of the voluntary act of union being legally undoable.

Given that there is no power of secession clearly reserved to the states in the Constitution, it’s hard to see how the question matters much from a practical standpoint. Whether a state would be “allowed” to secede would be determined by the actions of the remainder of the Union, which could either force the issue or not – just like the last time the question arose. There’s no court in which the controversy might be meaningfully resolved; the seceding state would hardly be likely to recognize the jurisdiction of U.S. courts.

Given our avowed (or maybe I should say “presumed”) commitment to the right of self-determination, at least when it comes to other peoples, I don’t think that the actions of the U.S. in the Civil War were necessarily “right”, but I think I’m glad the Union was preserved – “right” or not.
Chuck Plano, Tx says:

April 27, 2010 at 10:33 am

So Robert if preserving the Union is something that is best for the whole why did the United States at the time Texas declared it’s independence from Mexico the United States was one of the first to recognize that or when the State of Georga declared her independence from the USSR and the other Baltic and Eastern Block countries did the same we seemed as a Nation to think that was the “right” thing to do. It was because we believed that “People” retain the right to self determination and that right is granted to us by “God” not the state.
Mary Lou Leddy says:

April 27, 2010 at 10:40 am

I am so excited about this project. Studying the Constitution has been a real eye opener for me. I must admit it is frightening to see how far this great country has veered from the Constitution . I am however uplifted by reading the blogs from all of you. I firmly believe that by becomimg more aware of the founders thoughts and words we can make much better choices of candidates who run for office. Candidates who are believers and supporters of theConstitution.
Special thanks to Janine & Cathy
Brenda Wilson says:

April 27, 2010 at 10:45 pm

In readiing about a state honoring a homosexual marriage as law when they were not entered into this law was quite surprizing to me. This is what we call a slippery slope where it comes to recognizing something a violitile as this subject is. I would have a difficult time condoning this as constitutional but evidently it is. This is one thing I think the Framers of this constitution would never condone nor would give credence. So the amendment to this law had to be made so that a state would not have to be forced into an immoral state simply because they disagree and have a moral duty to uphold. These fianl articles have an impartail upholding in passing that they needed only witnesses and not a quorum of 2/3 of the staqtes representatives. This was so because one state never was there to cast its vote nd thereby be apart of this constitution.
Andy Sparks says:

April 27, 2010 at 11:05 pm

Robert,

Well put. I would point to the 10th amendment which specifies that those powers not specifically delegated to theConstitution are reserved to the States or the People as an argument for (at least) the possibility of secession. While I may disagree (somewhat) to your argument, I do not disagree with your sentiment. I, for one, am glad the Union won despite being born and raised in Texas.
yguy says:

May 13, 2010 at 11:07 pm

“Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case…”

It shouldn’t be. The push for same sex marriage is clearly an attempt by some for whom liberty means license to impose their immorality on society at large, and clearly the full faith and credit clause was never intended to facilitate such perfidy.

April 26, 2010/1 Comment/by Janine Turner and Cathy Gillespie

Articles IV-VII – Janine Turner

Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Article IV, Article V, Article VI, Article VII, Articles IV-VII, Constitutional Amendment I, Constitutional Amendment I

Howdy from Texas. What another great day of national conversation about our United States Constitution. I thank you for joining us and I hope you read Articles IV-VII with your children and/or friend or loved one!!
Don’t forget to tell your children or children you know about our We the People 9.17 Contest! Entries due July 4th. Scholarships, travel, prizes!!

I thank Joerg Knipprath for his most detailed description of Articles IV-VII. What a blessing it is to have so many wonderful Constitutional Scholars grace us with their dedication and knowledge.

What I found fascinating about today’s reading has not actually been mentioned. It is in Articles VI and VII. In Article VI it states:

“The Senators and Representatives before mentioned and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several states, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public trust under the United States.”

First of all it states that EVERY government officer is bound by oath or affirmation to “support” the Constitution. Another intriguing aspect is the part about how “no religious test shall ever be required as a Qualification to any Office or public trust under the United States.” This seems logical due to the fact that not only was the religious persecution from overseas still fresh in their minds, but also because free enterprise does not grow when stifled by laws of religion.
However, Article VII states:

‘..done in Convention by the Unanimous Consent of the states present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eight seven…’

It is very obvious with the usage of the words, “Year of our Lord,” that our forefathers were not afraid to mention
God in their thesis, documents and/or governmental realm. They were brilliant men and they knew that every word of the Constitution would be analyzed in the future, down to the last comma. They also wrote the Constitution to be an everlasting document that was to be eternally preserved, protected and defended.

Thus, no love, or lack, of God could prohibit one from serving in government but that did not mean one was prohibited from referencing his or her God in governmental affairs. There appears to be no mention of separation of church and state.

This is reiterated in a slightly different way in the first amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof…”

But we will discuss this one tomorrow.

I am also intrigued about how much our forefathers were concerned about treason.

Did anyone watch the History Channel’s, “America: The Story of Us” last night?” It was wonderful. The recounting of the revolutionary era reminds one that our forefathers were most sensitive to the tyrannical aspects of government intruding into citizens’ lives and as they recounted our “revolutionary” war tactics it reminds one that if we had, “played by the rules,” then we would have never won the war.

Thoughts to ponder…

More tomorrow. Blessings,
Janine Turner
April 26, 2010

Posted in Articles IV – VII of the United States Constitution, Constitutional Essays by Janine | Edit | 8 Comments »

8 Responses to “April 26, 2010 – Articles IV-VII – Janine Turner”

Celeste Munoz says:

April 27, 2010 at 1:19 am

I have often wondered why the ‘separation of church and state’ has been such a huge issue in these modern times. It wasn’t until the 60′s I think that it became an issue. I remember when Kennedy was running half the country thought he would just be a papal puppet and were highly suspicious of his Catholicism though they had nothing against a good old christian. A sign of the times perhaps.
Louis Palermo says:

April 27, 2010 at 1:19 pm

The First Amendment and the Fourteenth Amendment are two very important Amendments and two of my favorite. The First Amendment provides the most fundamental freedom to speak! It allows the people to assemble, practice their own religion and for freedom of the press to conduct their business. Recognition of this freedom curtails the power of the government. The founding fathers’ insight by this amendment was to limit the power of the government over the people.

The Fourteenth Amendment affords the people and the states valuable protections. It is the vehicle by which many statutes and laws are filed against the Federal government. If you will, it is the engine that maintains the system of checks and balances.

Looking forward to the Federalists papers.
akw says:

April 27, 2010 at 2:29 pm

Janine,

I didn’t know where to leave you a note, so I’ll just do it here. Love your new website, and I appreciate what you and your partners are doing here!! Keep it up, and I’ll help spread the word.
Cliff Unruh says:

April 27, 2010 at 3:01 pm

A key point to consider that may help explain our present situation:

Prior to 1912 the members of the U. S. Senate were not elected by popular vote but were appointed by their respective state legislatures (Article 1, Section 3). Under the original draft of our constitution the U.S. Senate represented the interests of the divers states and their respective state governments. The U. S. House of Representatives represents the people. Can you imagine any U.S. Senator who was appointed to his/her seat by the legislature back home ever voting for anything harmful to the local state government? In the absence of the 17th amendment would the health care bill have ever seen the light of day in the Senate? Obviously not. However, thanks to the 17th Amendment, the U.S. Senate was transformed into a “Super House of Representatives,” with the same concerns about winning reelection by popular vote. The interests of the individual states are no longer of importance to members of the U.S. Senate and we have all suffered as a result.
Debbie Beardsley says:

April 27, 2010 at 3:24 pm

Whoa, hold on here. I do not think there was any reference to God intended by placing Year of our Lord after a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.

Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.

I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.
Charles Patricoff says:

April 27, 2010 at 5:01 pm

I agree with Cliff’s comment regarding the 17th Amendment. I would like to know how and why it was created, for what intended purpose, and who sponsored it.
Dirk Newnam says:

April 27, 2010 at 6:49 pm

Back to Debbie B. Letting the founders speak for themselves on the issue of their intent, from your last sentence.

“We have no government armed with power capable of contending with human passions unbridled by morality and religion…Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”…John Adams

“It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians: not on religions, but on the gospel of Jesus Christ! For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.”….Patrick Henry (He does not exclude other beliefs but does emphasize our foundation is Christian)

“Providence has given to our people the choice of their rulers, and it is the duty as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers”…John Jay (First Chief Justice of the United States Supreme Court )

There are literally hundreds of other quotes to choose from that strongly confirm our founders intent to be motivated and directed by God’s Word through the Bible.

Last I encourage anyone who reads this to read the stinging rebuke delivered by Ben Franklin on June 28th 1787 during the Constitutional Convention’s first days after little progress had been made writing the Constitution. It is on page 108 of the book “The Myth of Separation” by David Barton 1992. Read the follow two pages to find out the incredible turn of events that followed. If only it could be reprinted on the front pages of our nations newspapers. What a change we might see in how we go about governing.

The quotes above are from the same book. He’s written several other since on this subject.

As a side on “Year of our Lord” can you imagine the phrase being used today by our watered down courts, government, or our media! It might remind of of where we came from, as a nation.
Constituting America says:

May 29, 2010 at 12:30 am

Today, our guest Constitutional Scholar of the day, Mr. Troy Kickler’s, insightful essay states, “Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that interest, reputation, and duty would bind the representatives to the Constitution and public opinion.”

I find this quote intriguing, especially the section ”..duty would bind the representatives to the Constitution and public opinion.” This singular line encapsulates wisdom and inspires reflection.

The first reflection is upon the word, “duty.” Duty seems to be a word that is lost in our American culture today. As the decades descend from World War II, the sense of duty to ones country appears to be diminishing. I looked up the word, “duty,” and found the following definition: ”a social force that binds you to a course of action demanded by that force. ” The definition was followed by a quote by John D. Rockefeller, Jr., ”every right implies a responsibility; every opportunity an obligation, every position, a duty.” Today the focus of America’s representatives as well as many Americans and the American culture seem to be one of self-interest. With the blessing of the Providential rights that are secured for us in our Constitution lay a responsibility. One of those responsibilities is to know, respect and understand the United States Constitution, as well as to encourage others to do so. The same should apply to the American Culture. How far we have drifted from the days when patriotism and love of country were, as President Ronald Reagan said, “in the air.” Is our country perfect? No. But as the Former Senator Patrick Moynihan said, “show me a better one.” We, as patriots who love our country and appreciate the founding principles upon which she was founded, need to rise to counter the palpable negativity that permeates our air today. One has to question whether our Congressional representatives are bound to their duty of their country and constituents, or to themselves.

The second reflection is upon the statement that duty would bind representatives to the “Constitution.” “..bind one to the Constitution.” The more I read the United States Constitution and the Federalist Papers, the more I realize how much we have strayed from the Constitution in cultural thought, personal awareness, legislative acts and supreme court rulings. This slow usurpation is due to a lack of knowledge and by a lack of pressure applied on our representatives to uphold the Constitution’s principles. As a Republic we rule through our representatives, thus, our vote is our voice. The checks and balances of our government begin with us. Thus, I suppose, there is a responsibility that we, as patriots, must own – if our representatives have grown callous and irreverent regarding the Constitution, it is because we have allowed it by our lack of diligence and duty to hold them accountable. How well do they know the United States Constitution? How do they intend to abide by its stipulations? These should be the questions of paramount importance.

The third reflection is upon the two words, “public opinion.” “Duty would bind the representatives to the Constitution and public opinion.” Public opinion seems to be virtually ignored by our representatives today. As mentioned in Federalist Paper No. 22 and in previous papers, Publius had a respect for the “genius of the people.” The American people have a genetic disposition and inherent ability to seek the truth and know the truth and American patriots rise to the challenge of duty. ”The experience of history” has proven this to be a tried and true trait of Americans. All of the attempts by the current branches of government to “reason” their way around the Constitution and govern a Republic without respecting the Constitution, and the history of the American spirit, will do so in vain. Duty to preserve our great country, founding principles, bill of rights and free enterprise will be the Paul Revere ”call to action” of our day.

God Bless,

Janine Turner
May 28, 2010

April 26, 2010/0 Comments/by Janine Turner and Cathy Gillespie

Articles IV – VII – Cathy Gillespie

Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 2. The Constitution, 15. Essays by Cathy Gillespie, Article IV, Article V, Article VI, Article VII, Articles IV-VII

Thank you for reading and blogging with us today in our 90 in 90 = History Holds the Key to the Future Program! Tomorrow is Day 5, and will be our last day on the United States Constitution before we embark upon the Federalist Papers. Please join us in blogging on the Amendments tomorrow. If you have been quietly reading along, we want to hear from you! And please continue to forward our website www.constitutingamerica.org to your friends, and post on Facebook, Tweet, mention on LinkedIn – help us spread the word!

A big thank you also to Professor Knipprath for your insightful comments on Articles IV – VII. I hate to admit that I am one of those people you speak of in your first sentence, for whom Articles IV – VII were terra incognita! Yet, these are some of the most important Articles in the Constitution: the amendment process arguably one of the most important of all.

With a 2/3 vote required in both houses of Congress, or 2/3 of state legislatures required to call for a constitional convention to propose an amendment, and then 3/4 of the State Legislatures required to ratify, or 3/4 of the states ratify in conventions, I marvel that the Constitution has been successfully amended as many times as it has. Our founders brilliantly put mechanisms in place to ensure that the Constitution be difficult, but not impossible to amend.

I noticed in the blog comments today many ideas as to what our next Constitutional amendments should be. These efforts may take many years. Various members of Congress have been working for decades to pass a Balanced Budget Amendment , for example. But thanks to the founders’ wisdom and vision, when the next Constitutional Amendment is passed, we will be assured it has been thoroughly vetted, rigorously debated, and that a super majority of the Congress and States (and therefore a majority of Americans), will agree it is necessary.

Thank you again for your participation, and contributions to our understanding of the United States Constitution. Keep spreading the word!!

See you in the morning!

Cathy Gillespie

Tuesday, April 27th, 2010

Posted in Articles IV – VII of the United States Constitution, Constitutional Essays by Cathy | Edit | 2 Comments »

2 Responses to “April 26, 2010 – Articles IV – VII – Cathy Gillespie”

Richard Heck says:

April 27, 2010 at 11:50 am

First thank you for mentioning God and how important He was and is to our country and how important He was to our founding fathers. I had a question on the election of Senators. Why was this changed and what implications did or does it have on how our government runs today? I saw where either you or Janine mentioned this last week and how health care might have been different if we were still electing them the original way.

Thanks
Rich
Constituting America says:

April 27, 2010 at 10:01 pm

Hi Richard – I recommend two excellent books that provide background on the U.S. Constitution and and the Amendments:

Seth Lipsky’s THE CITIZENS CONSTITUTION: AN ANNOTATED GUIDE, 2009 and the HERITAGE GUIDE TO THE CONSTITUTION edited by Ed Meese, Mathew Spalding and David Forte.

In brief, Amendment XVII was approved by Congress on May 12, 1912 and ratified by the required 3/4′s of the State Legislatures in less than 11 months. Most of the votes in the State Legislatures were overwhelmingly in favor of ratification, 52 of the 72 state legislative chambers voted unanimously in favor and in all of the 36 ratiflying States’ legislatures, votes against ratification totalled only 191 – 152 of these votes came from the lower chambers of Vermont and Connecticut. It is interesting it took the U.S. Congress so long to approve this Constitutional amendment, which had been considered in one form another since 1826. In 1912, Senators were already being picked by direct election in 29 of the 48 States. States moved to direct election of Senators through a process of non-binding primary elections by the people, whereby state legislators promised to vote for the candidate the people selected by direct election. State laws were even enacted that required State legislative candidates to sign pledges to vote for the Senate candidate the people selected in their “non binding” eection. (Heritage Guide the Constitution, page 413 – 414).

Electing U.S. Senators by the State Legislatures had become problematic over the years because many State Legislatures were deadlocked and couldn’t agree on a candidate, thus leaving some states without representation in U.S. Senate, often for more than a year. Corruption and Reconstruction politics contributed to these deadlocks. The Indiana Senate seat, for example, stayed empty for two years due to tension between the northern and southern regions of the state.

The argument for direct election of U.S. Senators was to make Congress more “democratic,” but this change also stripped away an important protection built into the Constitution by the framers to protect States’ rights. Because the health care bill puts new burdens on states, the argument could be made that had U.S. Senators still been elected by State Legislatures, they would have been more oriented towards protecting the interests of their State’s government.

Interestingly, Georgia Democrat Zell Miller called for the repeal of the 17th Amendment in 2004 before his retirement, saying “federalism has become to this generation of leaders some vague philosophy of the past that is dead, dead, dead. Reformers of the early 1900′s killed it dead and cremated the body when they allowed for the direct election of the U.S. Senators.” (The Citizen’s Constitution, an Annotated Guide, Page 66).

Cathy Gillespie

April 26, 2010/0 Comments/by Janine Turner and Cathy Gillespie