Politics is arithmetic, and numbers count. The most fundamental count is a majority, 50% plus one. We’ve devised other counts, supermajorities such as 2/3 and 3/4. Politics is about who and what counts, and who does the counting.
Under Article V the 50 States each count, and 34 of them must agree for an Amendment Convention to be called by Congress. What constitutes an agreement? What counts?
Formal Legislative Resolutions, passed by both chambers of a State Legislature, that’s what counts. It is the province of Congress to determine if 34 such Resolutions have passed, and to examine each of them to see if they count — if they can be Aggregated.
Since Congress has never before been called upon to consider this question there are no direct precedents, no clear guide from the past. But there are parallels. One such is State Ratification of Constitutional Amendments proposed by Congress. 3/4 of the States must vote for Ratification. What, exactly, counts as a Ratification?
It’s up to Congress, and it is their right to exercise wide discretion. Such discretion was freely exercised by Congress with respect to Ratification of the Civil War Amendments, the 13th, 14th, and 15th. Anything that resembled a Ratification counted. They were very forgiving.
I have this on the authority of a leading constitutional scholar, attorney Mike Farris. I met him at the December, 2013 ALEC meeting, and he told us of the research he’d conducted while he was opposing Ratification of the Equal Rights Amendment. He’d been to the Library of Congress, and personally examined the originals of the Civil War Amendments’ ratifications. He was amazed at their diversity. Congress counts what it wants to count.
Congress is not a court, and Congressmen are not judges. The question of what constitutes a Ratification is a political decision, not a legal one. The same goes for Aggregation. If Congress wants to count something, it will. If it doesn’t, it won’t.
The Courts have no jurisdiction in the matter, other than to, at most, review it to see that Congress had a rational basis for its decision. If the left had taken over the Supreme Court it’s possible they might have considered intervening on the question of Aggregation. But with the Roberts majority intact, it’s quite clear that will not happen. The majority Justices understand the concept of Federalism. Most, if not all, of them are associated with the Federalist Society.
Apparently Gov. Abbott of Texas has drunk the Kool-Aid, and thinks the BBA has an Aggregation problem. That’s because Abbott is thinking like a lawyer, considering a legal question. It’s not a legal question, but a political one, and I find it hard to believe Gov. Abbott doesn’t understand that. But lawyers think everything is a legal question, and Abbott is a lawyer’s lawyer.
So we may need to pursue trifurcation, making each of the three parts of the CoS Resolution aggregate with a single subject Resolution on the same subject. It’s little unwieldy, but it can work. Gov. Abbott can redeem himself by making sure this trifurcation is done properly.
If this is done correctly, we don’t lose Texas.
Now the CoS is causing trouble in Tennessee, threatening to cause the cancellation of the 7-11-17 Planning Convention. We’d have to get another State to issue the call, and that will be done if necessary. But it would be a shame. Nashville would have been perfect.