Constitutional Convention

[Evan Thomas]

FACE COLANDER! WHERE THE HELL IS MY FACE COLANDER???

You need to ask Wildalaska to issue you one.

I really like how mine makes me feel like Spiderwoman: looking though all those little holes is just like having compound eyes.

And I bet WA won't issue them to anyone who voted yes.

 

[ftd]

US 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.

Color Codes:
One method of proposing amendments, only proposal meth used so far
The other method of proposing amendments - not used, so far
One method of ratification, applies to either method of proposal - used for all but one of the ratified amendments
The other method of ratification, applies to either method of proposal - used for one of the ratified amendments
Applies for either method of proposal and for either method of ratifications
Of Historical significance only

27 amendments have been ratified (including implementing alcohol prohibition and unprohibting alcohol) and 6 proposed amendments have never been ratified.

While I do not advocate and con-con, given the above part of the constitution, the thought of it does not terrify me. The times that I know of when some states have called for one were instances when a few states felt that the federal legislature was refusing to address or addressing issues that some states felt strongly about. Have we ever neared the 2/3 point?

Article 8 does not allocate "special powers" to a con-con. It could not "re-write" the constitution except by amendment. Could that happen? Possibly, but I strongly believe that it could not get concensus either in convention to propose, and certainly not get ratification votes from 38 states to allow that large a change.

My biggest fear comes from the Supreme Court, which has historically made more changes to the constitution than all 27 amendments conbined and without any way to override these changes. The biggest area is in the area of the "commerce clause":

Article I - The Legislative Branch, Section 1 - The Legislature, Section 8 - Powers of Congress: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

which congress has repetedly justified to exert uninumerated powers into almost any area at all just because the subject of the exertive action can in any meager way be related to commerce - with consistant agreement from the supreme court. Since Congress would never propose a constitutional ban on this tyranny (limit in any way its own powers? I don't think so!), I could support a con-con to address this single issue.

 

[publius42]

ftd, we don't need a con con to address that issue. An amendment would do it. Maybe it should look like this:

The Congress and Supreme Court shall take note of the fact that "among the several states" means, well, "among the several states" and that commerce means, well, commerce, dude.

That oughta clear everything right up.

 

[ftd]

An amendment would do it.

I agree, publius42, but who would legally propose the amendment? Only two bodies,the federal congress and a state called "conventional called for proposing amendments" have that authority. I reason that the federal legislature would never propose an amendment that would eliminate their most effective means to exercise absolute and otherwise unconstitutional authority.

 

[Hkmp5sd]

27 amendments have been ratified

There are some that argue that the 14th Amendment has never been ratified.

 

[publius42]

ftd, I see your point, but did you look at the wording of my proposed amendment? My point was, how many different ways could a constitutional convention say "interstate commerce"? It has already been said! Try this: write the amendment you would like to see passed to restrain the commerce power within the bounds intended by Madison.

13 Feb. 1829
Letters 4:14--15 James Madison to Joseph C. Cabell


For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

 

[BlueTrain]

You know, the Constitution and Declaration of Independence were written mostly by lawyers, Ivy Leagers, and aristrocrats. Who do you suppose would be doing that today were there another convention?

 

[alloy]

lawyers, Ivy Leagers, and aristrocrats

Who do you suppose would be doing that today were there another convention?

samey same, but minus the integrity?

 

[SwampYankee]

samey same, but minus the integrity?

Just because someone was born in 1703 does mean that they were born with the last drop of integrity on the continent. Conversely, the framers of the Constitution were ambitious men and could be just as manipulative and duplicitous as the rest of us. For some ridiculous reason, we canonize our "forefathers" because they wrote the Constitution and founded the country. All great acts indeed, but performed by actual human men, not saints.

As the song goes, meet the new boss, same as the old boss. Self interest is always paramount.

But it is all moot anyways, just wait for the days of peak oil and then things will really get fun!

 

[BlueTrain]

It is even possible that, as in the case of the Texas Republic, that most of them would be foreigners, though still likely to be lawyers, ivy leagers and aristrocrats. Scary stuff.

 

[alloy]

Just because someone was born in 1703 does mean that they were born with the last drop of integrity on the continent

Ok, i kinda buy that with no hesitation at all. But if you tell me Barney Frank and Chris Dodd and the latest crop of career politicians are their equals on any level, i gotta disagree, altho i could imagine them standing out in the rain with a key tied to a kite line. Few in congress and washington these days that i would call enlightened in any form that will be actually honored or celebrated for impressive deeds of patriotism...in years to come. More than a few of the originals were at least worthy of the philosopher or statesman distinction, a far cry from criminal dufus.

Time will tell i guess, maybe they will surprise me and this era will go down as the glorious days of old for future generations of comrades to admire.

 

[ftd]

Touche PUBLIUS42!

Try this: write the amendment you would like to see passed to restrain the commerce power within the bounds intended by Madison.

It has taken me a while to understand what I think Madison was talking about. Several more days of studying the history of the use of the commerce clause "among the several states" is also needed. But I'll take a whack at it and hope that brighter minds than mine will fix it or at least expound on the ruin of it.

Proposed amendment:
The power of Congress to regulate commerce among the several States is intended only as a negative and preventive provision against injustice among the States themselves, by providing for the free movement of legal goods and materials between the States. This power shall not be used as a reason to gain other additional powers not specifically innumerated to Congress or any branch of the federal government. This power shall not be used as a reason to abrogate any rights or powers of the States or the rights of the people, except for enforcing a right of free passage along roads, waterways, and airways, between the States.

 

[OuTcAsT]

Proposed amendment:
The power of Congress to regulate commerce among the several States is intended only as a negative and preventive provision against injustice among the States themselves, by providing for the free movement of legal goods and materials between the States. This power shall not be used as a reason to gain other additional powers not specifically innumerated to Congress or any branch of the federal government. This power shall not be used as a reason to abrogate any rights or powers of the States or the rights of the people, except for enforcing a right of free passage along roads, waterways, and airways, between the States.
Today 07:33 AM

Well;

hope that brighter minds than mine will fix it or at least expound on the ruin of it.

I'm pretty sure this ^^ disqualifies me but, the only problem I see is that (much like it already has) Congress will simply
"innumerate" themselves the privilege to mangle it as they see fit. I don't think it is so much a problem of verbiage as much as the general malaise of the states to tell the fedgov no and then back it up. There are, however, some interesting cases being built as we speak that may begin to chip away at the fedgov's self-importance.

What? a state telling the fedgov to pound sand ? I speculate that it may be closer than we think and just may start the movement necessary to put things into perspective, IMHO.

 

[ftd]

OuTcasT,

I don't disagree with you. Congress will try to grab all the power they can. So will the other branches of government. Tryanny is always the route of government over time.

The purpose for an amendment is to keep our non-elected branch of government in check. The USSC keeps on allowing the power grabs of Congress even when state and citizen rights are trampled on and even when congress claims powers that are not specified in the Constitution (the 1oth amendment) by utilizing things like the commerce clause to override other reasonable constitution protections.

 

[Al Norris]

Shall we get to the "meat" of this particular problem? While the Commerce Clause has been over-extended, it has been the direct use of the (so-called) elastic clause (Necessary and Proper), that has been allowed by the Courts.

To my mind, however much you might try to curtail the over-broad use of the Commerce Clause, you will achieve nothing if you do not also address the elastic clause.

 

[YodaMage]

Somebody help me with the inherent conflict I see here. We want to ensure interstate commerce yet we also want to ensure states rights. So when state 'A' passes laws which contradict directly with bordering state 'B', then how is this to be handled? By allowing states more latitude to formulate their own laws and direction, how does this not lead essentially to a 'customs' between states and indirectly lead to check points and such to ensure that contraband is not flowing from a state where allowed into a state where restricted?


I ask this as I watch NYS pass law after law against illegal guns which have been shown to largely originate from outside the state...coming from the south and midwest where such laws are not present (which makes no sense and is accomplishing nothing...). How does failing to federalized and centralize certain laws (drugs, guns, child pornography, etc...) not contradict any measure to ensure free passage of people and goods across lines?

 

[publius42]

Hamilton said the elastic clause was redundant, and I tend to agree.

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

If they have a power, then they can write laws "for carrying into Execution" that power.

In any case, I don't think it's the elastic clause that is at the root of commerce clause abuse. It's the aggregation principle and the "substantial effects" test that Justice Thomas correctly called a "rootless and malleable standard." Without those legal fictions, the elastic clause could not be stretched.

 

[ftd]

To my mind, however much you might try to curtail the over-broad use of the Commerce Clause, you will achieve nothing if you do not also address the elastic clause.

In what I have read so far the SC rulings about Commerce usually do pair it with elastic. In at least one case that I read about, I think that the elastic clause was paired with commerce, as a means of applying the aggregation principle and the "substantial effects" tests (which publius42 mentioned). Could you fill us in more, Antipitas, about the pairing of commererce and elastic?

IMHO the use and abuse the commerce clause has singularly been the source of all major power grabs by the feds to exert control of our states and us, for the most part not directly from specifically enacted laws, but from the laws that create regulatory agencies (Dept. of Agriculture, Dept. of Commerce, the USDA, the FCC, etc., etc.), that are not directly answerable to the people (us). The use of the constructed "constitutionality" of an all encompassing commerce clause is THE MAJOR domestic power of the federal government.

Want to grow some wheat on your family plot so that you can grind your own flour and make your own bread? Watch out, you may be in violation of federal regulations. Ah, you might say, the good people from Washington, D.C. want to make sure you don't kill yourself by doing something stupid while growing, harvesting, grinding, and baking, right? Wrong!

You might, however, be in violation of inter-state commerce regulations that might regulate how much wheat can be grown (market effect). But, you say, I'm buying the wheat seed to plant from a farmer in my state, I will grow the wheat in my state, I will grind it in my state, I will bake the bread in my state, I will eat the bread in my state and I will not sell any of the fruits of my labor in another state or even in my state. How can I be violating interstate commerce regulations?

Well, it's simple, really. If you grow your own wheat for your own bread, for your own consumption, you will be buying less bread, causing the bakery to buy less wheat. Even though your small operation will not actually affect interstate wheat prices, just think if a lot of people did what you are doing, wheat prices might be go down. So, you may not do this and if you do this dastardly deed anyway, you will be prosecuted to the fullest extent of the law. Wickard v. Filburn, http://www.oyez.org/cases/1940-1949/1942/1942_59/

This is the same reasoning, and ultimately, the same power of congress (interstate commerce regulation) that will evetually be used to liscense (or not) and otherwise regulate those of us who load our own ammunition. They can get us without bending the 2nd amendment. Constitutionally granted government powers trump constitutionally protected individual rights

 

[apr1775]

The case Wickard v. Filburn was decided in the "New Deal" era. The Supreme Court initially ruled many New Deal programs to be unconstitutional. FDR threatened to pack the Supreme Court up with justices that would rule his way if the court did not start upholding his programs. That's when the court started coming up with crazy rulings such as any activity that could have any effect on interstate commerce can be regulated as such. We are still living in the effects of such precedents.

I think our constitution as it is now is good. However, I voted "yes" in the poll because it is being ignored and we don't seem to be able to achieve strict adherance without stricter wording or resorting to violence. I believe stricter wording in the constitution to limit the power of the federal government can only be brought forth by means of a constitutional convention. I'd much rather take my chances with a convention than violence, as that can often lead to events that would make now the good old days. I'm willing to listen to other ideas on how to return to strict adhearence to the constitution in order to reverse this path we are on now.

 

[BlueTrain]

All revolutions, successful or unsuccessful, lead to a more powerful government.