October 10, 2024 Jacobin published the opinion piece More and More People Are Saying It: Scrap the Constitution, where they tailspin intellectually and break the law. During WWII and fears of communism the Smith Act was passed by Congress (1940) making it a crime to advocate the overthrown of our form of government. Jacobin and writer are arguably subject to prosecution, but before we go there, let’s first examine the nuts and bolts of what’s at play and what’s up for grabs (other than public elections to private funding).
More and More People Are Saying It… basically stands on the shoulder of another piece titled A Constitutional Revolution (Jacobin, 2017). Both say essentially the same and a mash-up would sound something like: the Constitution is undemocratic, anti-majoritarian—checks and balances no longer work—clauses are indecipherable—and biggest fault of all—Article V—perhaps even more dysfunctional than the Constitution itself. Although the Preamble says “We the people” established the Constitution, the Constitution established the people under a skewed legal framework, and now, the minimalist change it permits is inadequate and why the US is not a democracy, but instead an eighteenth-century document displaying democratic characteristics but un-democratic overall, as the current system ensures political disputes, enabling politicians to channel bitterness into the deepening rule of private campaign funding—march the people to the polls for corporate faces and march them home; teach them the Constitution is the ideal so they never address an out of control system which has arisen from it.
But in a world of AI and deepfakes how can voters know what’s real? Addressing threats of AI and social media puts the cart before the horse, a new framework must emerge before figuring out anything. If the Constitution is the straightjacket, we need to escape it first. Indeed, calling an extra-constitutional body, a constituent assembly, would signal the end of the ancien régime, its status quo, and the time to build anew. An extra-constitutional assembly is required because the Article V Convention is unrealistic as Democrat and Republican corporations won’t call it—the path forward can’t run through Article V the reasoning goes. An extra-constitutional assembly would be a national gathering arising from the people rather than the states, its members voting as a whole rather than as delegations, with the goal to establish the first democratic republic in history. Pretty heady stuff.
To set things aright, let’s first address the notion of the Constitution being anti-majoritarian. The Jacobin argument goes, that because ratification requires 75%+ approval, thirteen small states can prevent what a majority of the nation would otherwise approve. But 75%+ approval is a political principle which mathematically precludes partisan law from ever becoming supreme law. In other words, whatever is proposed at a federal convention must get all Republicans plus half Democrats, or vice-vera, in order to be adopted; proposals for change must have overwhelming and broad support in order to become that change. In other words, constitutional ratification is as majoritarian as you can get. On the flip side, if a proposal attempts to deepen the rule by the few, it’s dead on arrival and will never come near the supermajority.
The former Jacobin piece intones we ought to remember how the Constitution came into being and how the Framers disobeyed the Articles of Confederation, so we shouldn’t obey the Constitution today. The truth is, the Articles of Confederation were not ignored by the Framers, they were “altered” according to terms of the confederation. Section 13 allowed that “any question” placed before the Congress, when decided, shall be binding on the states. The proposed Constitution was submitted to Congress as required by the Articles, Congress determined by unanimous vote that the actions of the convention were proper and determined the matter constitutional September 21, 1787. It then submitted the proposed Constitution to the states under the terms of the Articles. The states held elections for delegates, held their individual ratifying conventions, then reported back to Congress per the Articles the state determination conclusive on the state. All states followed this process, all acting under the Articles. The Constitution set adoption at nine states for it to take effect amongst those states. In other words, during the ratification process the states were operating under the Articles and Constitution simultaneously. Each state had the choice to operate under the Articles as written or under the Constitution. Eventually all elected to join, thus effectively ending the Articles.
The fact is the Constitution was ratified twice, once under terms provided by the Constitution, and once by state legislatures as required by the Articles, and likely the most ratified document by a people in history.
Perhaps not only Jacobins, but much of America, believes Article V provides no clues or rules for how the convention process works, and even if it did, the states are casting applications one session, rescinding them the next, so it’s become just another private money affair, relegating the process to a never ending limbo of whack-a-mole. These are two issues: the operational details of a convention and the mandate of the call. Let’s take the up the first issue, which is properly determined in the opinion of Justice Brewer in Gulf, C&S. F. R. Co. v. Ellis, 165 U.S. 150 (1897).
Article V is part of the Constitution, and as with all such questions, the entire Constitution is applied—every clause bears on the others and thus where details are found; this is especially true of the 14th Amendment which in part states:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
The principle of equal protection extends to all aspects of the amendment process. Wait—let’s say that again: The principle of equal protection extends to all aspects of the amendment process. This explains why a convention must be comprised of elected delegates, why a convention vote is conducted by delegations rather than individual delegates as a whole, why a convention can only propose amendments on a two thirds vote of state delegations, all protecting the people equally, regardless whether a proposal originates from Congress or the Article V Convention.
The Supreme Court has ruled members of a legal class must be treated equally under the law and any discrimination must rest on some difference bearing a reasonable and just relation, and cannot be made arbitrarily without basis. In the case of a convention, to classify it as different from Congress would mean to treat members and delegates differently under the law when there is no basis to do so because the function of both is identical—to propose amendments. The Constitution authorizes no other political body to make proposals, only a member of Congress or an Article V Delegate holds power to do so, therefore any law which applies must apply equally to both.
Delegates
If members of Congress suffer election to obtain power of proposal, so too must convention delegates. Indeed it would be impossible to assert otherwise as all groups associated with the amendment process (including state legislators and state ratifying delegates) consist entirely of elected members. Similarly, attempting to instruct delegates on what to consider, what to propose and how to vote, is unconstitutional because it denies delegates equal power granted to members of Congress, not to mention protecting the people from a preset and thus bogus convention.
Election law which regulates members of Congress also applies to delegates. The lowest standard of election for members of the House is having attained the age of twenty-five, citizenship for at least seven years, and residing in state where elected. This constitutional standard becomes the election qualification for an Article V Delegate.
State Delegations
House members are elected from congressional districts apportioned in states based on population, and as those populations vary, so too do the number of their congressional districts. Consequently delegates must be elected from those same districts in order to protect the people in being equally represented. The number of delegates from each state must be equal to the number of congressional districts in the state.
Each state is equal in the convention process: each is permitted one application for a convention and one vote in ratification—a single state cannot cast 34 applications to cause a convention and a state cannot vote 38 times to ratify an amendment. In the amendment process each state has one vote regardless of population, thus making them equal. This was the major concern of delegates to the 1787 Federal Convention which gave us the Constitution itself; they wrestled over the question of equal representation in the face of varied populations and resolved the problem by creating two houses of representation—one based on state representation (the Senate) and the other on state population (the House). However, Article V mandates a convention be unicameral rather than bi-cameral—simplifying and strengthening the effect of the process as a single body is less political than two and thus more reliable.
In order that the population in each state is represented equally, delegates from each state are gathered into delegations. In this way populations are equally represented, where the delegation becomes an artificial person with a single vote; each delegation votes on proposals within itself and casts that decision as its state vote; 50 votes for each proposal, requiring two-thirds to have it legally proposed to the states. The Federal Convention of 1787 and the Congress prior to enactment of the Constitution, both used state delegations as basis of one vote.
Quorum
The operational question of quorum of a convention is again resolved by applying the 14th Amendment. In Congress the Constitution demands a quorum for either the Senate or the House to conduct business—a majority of members; fifty percent, plus one. Thus in Congress a quorum of members may vote to propose an amendment without two thirds of full membership present. And so it is in a convention, a quorum of states (26) may propose an amendment without all delegations present and conduct business as required.
In Missouri Pacific Ry. Co v State of Kansas, 258 U.S. 276 (1919) the Supreme Court ruled on the issue of quorum in relation to the amendment process of Article V. The Court quoted Speaker of the House on passage of amendment providing for election of Senators in reply to an inquiry from the floor as to whether the vote was in compliance with the two-thirds rule fixed by Constitution, member Reed said, “The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says ‘two-thirds of both houses.’ What constitutes a house? A quorum of the membership, a majority—one-half and one more. That is all that is necessary to constitute a house to do all the business that comes before it…. [I]f a quorum of the House is present, the House is constituted, and two-thirds of those voting are sufficient in order to the accomplish the object.” Therefore, as with Congress, quorum of state delegations constitutes a convention which may proceed with business.
Now let’s address the issue of state applications: The central theory of Anti-Conventionists is that state legislatures can rescind previously submitted applications for the Article V Convention. The political benefits being obvious: rescinding applications prevents a convention from being called. According to the theory, state legislatures have the right to rescind an application and declare it “null and void” at any time after submitting it to Congress. They believe they accomplish this with issuance of a memorial (a state communication to Congress as part of official record) announcing previous applications have been rescinded. Yet, no such memorial has ever contained instructions to Congress as to what is expected in light of the so-called rescission. No rescission has ever expressed that Congress, by authority of the state issuing the rescission, is required to obey it. No rescission has ever referenced a court ruling, legislation, or state law asserting legal effect on previous applications, or that binds Congress to rescission announced by a state. At the least there would have to be a provision in the state constitution enabling the demand of rescission of federal records. No such provision exists in any state constitution because it would conflict Article VI which describes federal law as “made in pursuance” of the Constitution and “Supreme.”
All state applications are recorded in the Congressional Record, and are maintained by Congress. Applications are placed in federal archives as federal public property. According to theory, rescinding an application means Congress is required to remove the application thus preventing it from “counting” toward a convention call. Yet, proponents have never sought a court ruling affirming authority of states to rescind and nullify federal public record. While some states have asserted a right to nullify federal law within state boarders none has ever enacted law asserting authority to rescind federal record in possession of the federal government. And proponents have never provided historic record proving states possess authority to rescind federal records, denying autonomy of federal records from state encroachment. Supreme Court rulings are emphatic, when states operate in the amendatory process they do so under the federal constitution not the state constitutions.
In United States v Sprague, 282 U.S. 716 at 730,731 (1931), the court stated, “The United States asserts that Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses; or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them…. The Constitution was written to be understood by voters; its words and phrases were used are normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition.” In sum, the amendment process of Article V is strictly overt; unless the text expresses it, there is no constitutional authorization for addition, such as rescission or any other excuse concocted and intended to prevent the call. Public record shows Congress has never removed a single application from federal record. Rescission clearly requires federal legislation enabling rescissions of state applications, and if authority existed it would rest with Congress, not the states. Indeed, according to the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and to the people.” The related text of the Constitution provides that records of Congress are assigned to Congress, not the states. Article I, Section 5 requires, “Each House shall keep a journal of its proceedings, and from time to time publish the same….” In other words, authority to keep records of congressional proceedings is assigned to Congress and under terms of the Tenth Amendment, denied to the states. The decision as to what is entered in the record (or removed from it) is entirely controlled by Congress, the states have no authority in the matter. Article V Applications are recorded and Congress archives them as federal public record. Removal of federal public record is strictly prohibited by two federal criminal laws. 18 USC 1001 makes it a crime to “make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry….” Without legal evidence, i.e. a provision in the Constitution or a federal court ruling making rescissions legally binding renders the theory of rescission materially false.
18 USC 371, makes it a criminal offense for two or more persons to commit any offense against the United States “in any manner or for any purpose” (such as conspiring to prevent a convention call by use of fictional theory when otherwise mandated). Passage of resolutions for rescission of applications in state legislatures, based on fictional legal theory qualifies as “any act to effect the object of the conspiracy” provision. Burden of proof would fall to them to prove rescission/nullification of state applications as a legally binding state power on Congress. Refusing to count an application based on a fiction is a felony. Under federal law, members of state legislatures which passed rescissions, advocating them, face criminal conspiracy charges.
18 USC 2071 forbids “willful or unlawful” removal of public record “filed or deposited...in any public office, or with any ... public officer of the United States.” An Article V Application sent to Congress is an official act of government with state seal and state signature. Applications state they are to be filed with Congress and officially noted in public record. Applications are “filed or deposited” with a public office (Congress), and under 18 USC 2071, a public record may not be removed from those of the United States.
Congress has never enacted legislation making removal/rescission of applications lawful. To enact such would require Congress to declare federal record under control of the states rather than the federal government. 18 USC 2071 is particularly stringent in that should any official unlawfully remove a federal record, requires a sentence of three years in federal prison, forfeit office and disqualified from holding such ever again. The fact no state application has ever been removed by Congress as result of the theory of rescission is evidence removal is unlawful. If not, removal of public record would be a matter of routine performed by clerical staff of both houses.
Between the two federal criminal laws there is no middle ground. 18 USC 1001 makes it a federal crime to “falsify, conceal or cover up by any trick, scheme or device a material fact” or to make any “materially false, fictitious or fraudulent statement or representation.” A member of Congress or state legislator asserting insufficient count for a federal convention, based on a legal fiction, while material fact proves sufficient applications do exist, is a form of criminal activity.
The convention call, as described in Federalist 85, is “peremptory”—meaning, as Alexander Hamilton explains, Congress has no option. Allowing state rescission is clearly not permitted. Moreover as such would require deliberation by Congress with object of refusing a call when mandated, as stated in Congress, May, 1787. Enacting legislation enabling Congress to rescind an Article V Application permits Congress ability to avoid calling a convention when required to do so, creating estoppel of supreme law.
Another obstacle to creation of a federal law rescinding applications is the Hollingsworth Doctrine. This doctrine refers to Hollingsworth v Virginia, 3 U.S. 378 (1798). There, the Court determined the President “has nothing to do with the proposition, or adoption, of amendments to the Constitution” and that his “negative [veto]” applies only to cases of legislation. Legislation granting Congress authority to rescind applications, such that the primary right of the people to alter government systems where provision of the amendatory process may be thwarted, clearly has to do with proposition of amendments to the Constitution. The Hollingsworth doctrine prevents presidential signature and enactment of legislation required to lawfully permit rescissions of Article V Applications.
Finally, Article V grants no state authority over another's application. Public record shows the states have submitted 11 sets of applications each consisting of the necessary two thirds. Several sets were submitted prior to the campaign for recessions, which began in the 1980s. As the call is peremptory on Congress, so too is it on the states, they have no option, and thus can take no action which presents Congress the option not to call a convention when obligated. A rescission is an act of corruption providing Congress discretion on non-discretionary duty.
The states cannot limit a convention to a single topic nor place limits on effect of an application, i.e. restricting a call to a time when 2/3 applications on a particular subject exist. In each case such a provision defeats the peremptory spirit of Article V. Placing terms, conditions, or circumstance on an application violates “Congress...shall call a convention….” Congress is only concerned with how many states have cast applications, subject matter is reserved for the convention to address.
State applications moving to limit discussion of amendment or surmising applications be same-subject are unconstitutional. In both cases, the state in question is attempting to regulate actions of other states. As all states are equal, access to a convention is equal. No state can prohibit another from presenting a subject or limit discussion to what a state or group of states considers worthy. Such discrimination is violation of the 14th Amendment and equal protection under the law. The only way a state can rescind an application is to not cast it in the first place, or upon the call, decline to send a delegation, which if they did, anyone present from that state and meeting minimum requirement for a House member, may declare themself delegate.
When the Article V Convention meets, the entrenched forces will not be able to stop what it’s designed to do. For months it will dominate American political life, even the most jaded and cynical of Americans will be interested, seeking the latest information and forecasting which proposals have a shot at fixing what’s wrong. The Article V Convention is what Jacobin professes to desire under their idea of a constituent assembly. What they aren’t recognizing is that there are tens of millions of Americans from across a regionalized country, both left and right, which would balk at some type of extra-constitutional assembly, so the possibility to getting enough to agree to it prior to it taking place is zero—you can’t expect national consensus prior to creating national consensus—you can’t expect an informal agreement before discussing and creating formal agreement.
Up until now, it seems Jacobins want something, anything, but the Article V Convention when the truth is, in terms of practical politics, it will never happen. So the question is, why espouse ideas for something impractical when you can have the real thing? Why seek a cola when you can have a Coca-Cola?
As noted by James Iredell, in the North Carolina Ratifying Convention of 1787: “The Constitution of any government which cannot be regularly amended when its defects are experienced, reduces the people to this dilemma—they must either submit to oppressions, or bring about amendments, more or less, by a civil war. Happy this, the country we live in! The Constitution before us, if adopted, can be altered with as much regularity, and as little confusion, as any act of Assembly; not, indeed, quite so easily, which would be extremely impolitic, but it is a most happy circumstance, that there is a remedy in the system itself for its own fallibility, so that alterations can without difficulty be made, agreeable to the general sense of the people.”
The reason government looks and acts the way it does is because the Congress has failed to issue the call. Federal law regulating the oath of office by government officials is divided into four parts along with an Executive Order which further defines the law for purposes of enforcement: 5 U.S.C. 3331 provides the actual text of the oath. 5 U.S.C. 3333 requires an affidavit be signed, affirming the oath has been taken, and that the individual has not/will not violate the oath during tenure of office. The third part, 5 U.S.C. 7311, makes it a federal criminal offense for anyone in government to advocate the overthrow of our constitutional form of government. The definition of advocate is further specified in Executive Order 10450 which makes it a federal criminal offense to alter our form of government by unconstitutional means. Our form of government is defined by the Constitution of the United States and can only be altered by constitutional amendment. Any act or inaction by government officials which alters our form of government by unconstitutional means is a criminal violation of 5 U.S.C. 7311. Public records show the states have cast hundreds of applications for a federal convention and one session of Congress after another has simply ignored its constitutional duty to issue the call.
During the 114th Congress US House Representative Luke Messer (6th Indiana) introduced H.R. 5306 (Article V Records Transparency Act). This would have tasked the Director of the National Archives and Records Administration (NARA) with finding and enrolling all state applications as official federal documents so they can be counted by the Congress. Placed with the House Judiciary, the resolution died without comment from either party, and has never been re-introduced. The overthrow of our form of government is not going to happen in the future, but already has and the crises will exist until a convention is called. Every member of the current Congress not actively engaged in the pursuit of the convention call, in their official capacity, is engaged in federal criminal activity and arguably subject to arrest.
The idea that Americans have no choice but to stand by as democracy evaporates is absurd. Democracy is not meek but fierce, recognizing no authority other than its obligation to defend and extend its rule. People not only have a right to resist, but a moral duty. Not by blockading Pennsylvania Avenue or storming Capitol Hill, but by creating the political pressure required for the Congress to obey Article V and issue the call. Good news is, we’re not far from doing so, as a recent poll shows 68% of Americans would like to see a meeting of the states to formally discuss the federal government.
Marbury v. Madison, 5 U.S. 137 (1803): “It cannot be presumed that any clause in the constitution is intended to be without effect.”
The convention clause of Article V is not without effect.
Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “The government of the United States can claim no powers which are not granted to it by the Constitution.”
No branch of government has the power to question the validity of state applications for the Article V Convention because there are no terms or conditions placed upon it other than having been cast.
Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842): “[The] Court may not construe the Constitution so as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them.”
To question the validity of a state's application attempts to construe and defeat the obvious ends of the convention clause.
Dodge v. Woolsey, 59 U.S. 331 (1855): “The departments of the government are legislative, executive and judicial. They are coordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, right-fully done by either, is binding upon the others. The constitution is supreme over all of them, because the people who ratified it have made it so; consequently, any thing which may be done unauthorized by it is unlawful.”
The three branches of government are unauthorized to question the validity of a state application because the power to do so does not exist. According to Federalist 85, the saving grace of the Constitution is the prohibition of such power.
Jarrolt v. Moberly, 103 U.S. 580 (1880): “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.”
To question the validity of a state application, either through its contemporaneousness or subject matter, defeats its purpose and allows the mischief at which it is aimed to suppress.
U.S. v Sprague, 282 U.S. 716 (1931): “Where intention of words and phrases used in the Constitution is clear, there is no room for construction [re-interpretation] and no excuse for interpolation.”
Any attempt at construction or interpolation as to validity of state applications runs counter to the intention of Article V.
Ullmann v. U.S., 350 U.S. 422 (1956): “Nothing new can be put into the constitution except through the amendatory process, and nothing old can be taken out without the same process.”
Nothing in the Constitution places any stricture in any way whatsoever on the validity of state applications for a convention beyond having been cast. To limit the validity of a state's application an amendment would have to be proposed and ratified.
Ullmann v. U.S., 350 U.S. 422 (1956): “As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion.”
The constitutional guarantee to a convention is currently suffering subordination. Based on public record the Article V Convention is mandated, and each session of Congress is in violation of the Constitution until a convention is called.
No comments:
Post a Comment