The Fix Article V Amendment

It wasn’t a last minute mistake.  The screwed up language of Article V was simply the product of sloppy thinking.  The way it has been interpreted, it requires 2/3 of the states to agree to meet in Convention.  It should have specified that only a majority of states would be needed to for a quorum for an amendment convention, and then 2/3 of the states must agree in order propose an amendment.  Just like the Constitutional Convention itself, which only required a quorum of seven, or a majority to meet.  And just like Congress.

This simplifies the story, or the pitch, if you will.  It boils down to facts.  In the 229 years of the Constitution, Congress has proposed 33 amendments, and the states have proposed none.  That’s not the way it was supposed to work.

The Fix Article V Amendment would simply would allow 26 states to call a Convention, and that if 2/3 of the states agree, make a proposal for an amendment to the Constitution.  Just like the Constitutional Convention itself.  And just like Congress.

 

Not a massacre, a housecleaning

When the guilty clean house, it’s a massacre.  Nixon’s Saturday Night Massacre may merit the name, but only because Nixon was guilty, and he was covering it up.

Trump is not guilty, and he’s not covering anything up.  He can order the AG to put an end to the Mueller conspiracy, and if he refuses he can fire him.  Then he can order Deputy AG Rosenstein to end it, and fire him if he won’t.  At some point he’ll get the kind of person Nixon got (Robert Bork) who understands that the Department of Justice answers to the President, and is subordinate to him.  And that person will put an end to the Mueller conspiracy.

The media will go nuts, and call it a constitutional crisis.  In fact, Trump would be putting an end to a constitutional crisis  — the  slow motion coup d’etat being perpetrated by the Deep State.

Timing is critical, and President Trump isn’t quite ready to pull the trigger.  This drives people like Lou Dobbs nuts.  Trump may not be a constitutional scholar, but he understands power.  And he understands that the power of the Presidency is adequate to deal with whatever the Mueller conspiracy does between now and the time Trump ends it.  With the pardon power, he can make Mueller, and anything Mueller may do, irrelevant.

So the President is gathering credits, allies, and supporters.  The economy continues to improve, month by month.  And there’s a decent chance he may get the Nobel Prize for denuclearization of the Korean Peninsula.  That explains the ZTE flip flop.  He’ll do everything he can to get that deal.  It’s got to be a good deal, but he’d dearly love to get it.

Because after he makes that deal,  he’s free to clean house at Justice.  He’d never be in a stronger position.  It will be the time to strike.

 

The story of the first technical amendment to the Constituiton

In Chisolm v. Georgia (1793) the Supreme Court decided to give itself jurisdiction over the states in suits by non-citizens of that state.  The court used the fuzzy language of Article III, Sec. 2 to justify its power grab.

So Congress proposed the 11th Amendment in 1794, which was ratified by 3/4 of the states in 1795.  It wasn’t controversial.  It was merely a technical amendment.  The Framers had not made themselves clear when they adopted the original language at the Philadelphia Convention.

So it should be with the Fix Article V Amendment.  All it does is correct some sloppy drafting.

But Congress would never pass such an amendment, since it empowers the state legislators.  So these legislators need to empower themselves by passing the Mason Amendment.

Why wouldn’t they?  Maybe the thought of exercising supervision over Congress is too scary.  Maybe they don’t trust themselves, or each other.  Or maybe they think Congress is doing just fine.

A technical amendment to the Constitution

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

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

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

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

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

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

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

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

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

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

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

How Rhode Island gave us the Constitution

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

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

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

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

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

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