By Lambert Strether of Corrente.
Let’s start with Article V of the United States Constitution:
The Congress, whenever [A] two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on [B] 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 [C] ratified by the legislatures of three fourths of the several states, or by [D] 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.
(This language — “The first and fourth clauses in the ninth section of the first article” — protects the slave trade.[1]) So amending the Constitution is not easy, and by design. Federalist Papers 39 (which, honestly, reads like a Vox explainer tap-dancing through a heavily contested policy issue, except in 18th Century prose), ALL CAPS as in the original:
The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities….
But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. ….
(The “EXTENT” of the government’s powers being indeed the key issue, as we shall see.)
If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character.
The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
I’m glad that’s sorted. Suffice to say that Amendments are hard.[2] If we return to the text of Article V, we see two modes for proposing Amendments (at [A] and [B]) and two modes for ratifying them ([C] and [D]). All amendments, so far, have taken the path from [A] through [C]: Proposed by both houses of Congress; ratified by state legislatures (except for the Twenty First Amendment, abolishing Prohibition, which was passed by state conventions). However, given the current composition and polarization of Congress, it’s very hard to see how path [A], proposal through Congress, can be followed by either party. There remains path [B], “the application of the legislatures of two thirds of the several states,” followed by whichever of the two ratification modes[3]. The magic number for an “Amending Convention” is 34 (two-thirds of 50) and until very recently I would have thought that path to a Constitutional convention implausible, too. As indeed it has been: “There have been hundreds of applications for an amending convention over the years from virtually every state [but] no amending convention has ever occurred.” But then I see maps like this:
Figure 1: “Blue vs. Gray”
Regardless of what the characters at the “FEDERAL” level (Madison’s caps) might want, it’s clear, structurally, that characters at the “NATIONAL” level (Madison’s caps) — that is, the political establishments in every state not colored blue, above — not only might want something different, they might gain the power to impose their will. (Note that the story from which the above map comes was triggered by the defection of a Democrat governor to the Republicans.)
Here’s a slightly less dire map. I hate to quote a venue like Kos, but needs must:
Figure 2: “The Balance of Power for State Legislatures”
And summarizing:
The above map illustrates the balance of legislative power in state legislatures nationwide. Republicans control both chambers in 32 states, including 17 with veto-proof majorities. Those 32 states cover 61 percent of the U.S. population. Democrats, meanwhile, control the legislature in just 13 states, amounting to 28 percent of the country’s population; only five of those chambers have veto-proof majorities.
(Return to Article V: “the application of the legislatures of two thirds of the several states.” In other words, a governor can’t veto the application. So state “trifectas,” where one party controls the legislative[4] and executive branches, aren’t relevent to an Amending Convention.)
32 is uncomfortably close to 34, isn’t it?[5]
As a sidebar, I’m guessing the typical liberal Democrat partisan would react instantly to Figure 1: “ZOMG!!! We’ve got to elect moar Democrats!!!!!!” followed by fuel for the outrage machine, and very shortly funding for the usual Democratic strategists. I’m hoping — I, personally, don’t think a Constitutional Convention would be the best idea right now, for reasons I’ll get to shortly — that more sober analysts, if any exist, will focus on the map in Figure 2, take a careful look at the pathways to misfortune for both the 2016 Clinton campaign and the Republican failure to repeal and replace ObamaCare, remember that all politics is local, and take action accordingly. Figure out how to hold the line at 32. For example, make sure that “renegade Democrats” in NY and WA defect back from the Republicans on the Amending Convention issue, whatever they do on anything else. A second example: The Maine Senate is 18/17 Republican, and the Maine House is 77/72 Democrat. It might not be that hard for Republican forces to swing the House — the Maine House is a “battleground chamber” — and turn Maine into a trifecta state if Susan Collins ran for Governor after establishing her moderate cred by nobbling TrumpCare.
So if there’s an “Amending Convention” desk at the DNC, they might want to be figuring out a way to prevent more state legislatures from flipping. Like, now. One way of doing that would be to take advantage of factional infighting among Republicans, not to mention their policy failures. From West Virginia’s public radio station, commenting on Governor Jim Justice’s defection from the Democrats to the Republicans:
Years in power have also created problems for state-level Republicans. In Kansas, an overly ambitious plan to cut taxes orchestrated by Gov. Sam Brownback (who’s been nominated to a State Department post in the Trump administration) starved the state of funds for its schools and other services. Kansas Republicans wound up bitterly divided over the issue and earlier this year, a moderate faction sided with Democrats to override Brownback’s veto and rescind the tax cuts.
Similarly, a series of tax cuts in oil-dependent Oklahoma left the state poorly prepared for a downturn in energy prices. Republican lawmakers were forced to swallow their opposition and vote for tax hikes in order to keep the state solvent.
With Democrats all but vanquished in several Republican-dominated states, intra-Republican disputes have taken center stage. In Texas, Republicans are divided between a business-friendly faction that prioritizes low taxes and less regulation and social conservatives eager to pass the most conservative legislation possible, such as a bill limiting transgender access to bathrooms. Earlier this year, Florida Gov. Rick Scott was running campaign-style ads against fellow Republicans in the legislature over a dispute about economic development funds.
A combination of voters unhappy with the governing party’s track record and internal party rifts that will play out in primary elections, sometimes leading to extreme or unqualified candidates, could weigh down Republican candidates up and down the ballot over the next year.
Whistling in the dark? Maybe. (If you read the whole article, you’ll see it focuses mostly on Republican governors, who, as we have seen, aren’t relevant to initiating an Amending Convention. You’ll also see the idea that nationalizing the election will benefit Democrat candidates. But that strategy didn’t work for Jon Ossoff, and if it didn’t work for the United States House, is it really going to work for a seat in the state legislature? I doubt it.)
Returning once more to the text of Article V, and how political forces at the “NATIONAL” level might seek to apply it:
… the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments…
The key point here is that the “application” for an Amending Convention need not take the form of an application for a particular amendment. The Heritage Foundation urges, I think correctly, that:
an important question is whether such a convention can be limited in scope, either to a particular proposal or within a particular subject. While most calls for amending conventions in the nineteenth century were general, the modern trend is to call (and thus count applications) for conventions limited to considering a single, specific amendment. Some scholars maintain that such attempts violate the very mechanism created by Article V: the text says that upon application of the states Congress “shall call a Convention for proposing Amendments,” not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention).
In other words, the scope (“EXTENT”) of an Amending Convention cannot be known in advance. The Times writes:
Taking advantage of almost a decade of political victories in state legislatures across the country, conservative advocacy groups are quietly marshaling support for an event unprecedented in the nation’s history: a convention of the 50 states, summoned to consider amending the Constitution.
The groups are an amalgam of free-market, low-tax and small-government proponents, often funded by corporations and deeply conservative supporters like the billionaire Koch brothers and Donors Trust, whose contributors are mostly anonymous. They want an amendment to require a balanced federal budget, an idea many conservatives have embraced, many economists disdain and Congress has failed to endorse for decades.
But as the groups near their goal, critics and some skeptical constitutional scholars are warning that holding an amendment-writing meeting with no historical parallel and no written rules could open a Pandora’s box of constitutional mischief.
It is true, as the Times writes, that the policy focus of most Amending Convention advocacy has austerity in the form of balanced budget amendment [6]. It’s also true that austerity in practice has turned out to be a bad idea, as even some conservatives admit:
Because extreme Republican fiscal austerity advocates have not been able to get a “balanced budget” amendment through Congress, they have been pursuing the state-based avenue for several decades, with little success.
Right-wing convention backers mounted a strong push in this year’s legislative season, but came up empty-handed in several of their target states and lost momentum when three states (Maryland, New Mexico and Nevada) voted to rescind their balanced budget amendment convention calls.
However, just because the balanced budget amendment — which is a “FEDERAL” concern — seems to be stalling, doesn’t mean that “NATIONAL” actors might not have other concerns of their own; and an Amending Convention itself determines its own scope, which is not limited to any one amendment. I wouldn’t say that Figures 1 and 2 show that “power is lying in the street,” exactly, but it’s certainly lying where “NATIONAL” actors, if co-ordinated — especially in the face of a triggering event in the form of a national catastrophe of some kind — could pick it up. Let’s remember that the 2016 election was, among other things, about volatility (or, as the cliche goes, “change versus more of the same”). Some might regard the volatility of “open[ing] a Pandora’s box of constitutional mischief” as just the ticket, and given the performance of “FEDERAL” elites over the last forty years, it would be hard to blame them.
NOTES
[1] An Act Prohibiting Importatation of Slaves was passed in 1807 and took effect in 1808. Slavery itself was abolished by the Thirteenth Amendment in 1865 (with some important exceptions).
[2] Madison’s prose was so funny and delicious I had to quote it; but the Heritage Foundation summarizes the issues in a less funny but more readable form:
More significantly, the double supermajority requirements—two-thirds of both Houses of Congress and three-quarters of the states—create extensive deliberation and stability in the amendment process and restrain factions and special interests. It helps keep the Constitution as a “constitution,” and not an assemblage of legislative enactments. Most importantly, it also roots the amending process in the Founders’ unique concept of structural federalism based on the dual sovereignty of the state and national governments.
(I have the nasty feeling that “dual sovereignty” is some sort of right-wing talking point or dogwhistle, but let that pass.)
[3] I’m going to ignore the modes of ratification from here on in. It seems to me that the successful initiation of a Constitutional Convention would so upset the apple cart that there’s no point worrying about subsequent events. The Archdruid, when his “Report” was still up, had a fine future history with a triggering event for a Constitutional Convention: “We” lost first an aircraft carrier and then a war to the Chinese. That convention culminated in the breakup of the United States.
[4] Unicameral legislatures apparently get a count of two.
[5] I deprecate the demonizing “ZOMG!!! The Koch Brothers!!!!!!” because I reject the liberal Democrat framing that good billionaires are Democrat donors, and bad billionaires are not.
[6] Which any MMT advocate would regard, correctly in my view, as demented.
84 comments
Comments are closed.
But you don’t understand! Cenk Uygur says he’s talked to lots of conservative state legislators and they say they’re mad about big money in politics too, so it’ll be okay to have a constitutional convention. /sarcasm
Oh, yikes. He has a following (not including me).
Didn’t Cenk’s group receive four million dollars recently from a RW millionaire?
IMHO he and TYT are likely NOT the progressives they claim to be.
They are part of the pervasive media capture of America.
https://www.mediaite.com/tv/the-young-turks-network-raises-4-million-from-former-republican-presidential-candidate/
Looks like TYT did. I wasn’t aware of this fact. It explains quite a lot, actually.
Cenk Uygur started as a Republican,. He mentions this pretty often. If you accept that liberals are fundamentally conservative (which is a conclusion I find hard not to reach), this isn’t as big a change as he himself probably imagines it to be.
Billionaires are pushing ideas to help the common man. They are not greedy and trying to get more for themselves. Altruism rules.
Just repeat that three times each night before you go to sleep and everything will be fine.
Not just that, he and TYT have been actively pushing for a constitutional convention for years: http://www.wolf-pac.com/.
They explain the plan here: https://medium.com/wolf-pac/the-logical-path-to-end-corruption-a64c1d06394b, and dismiss what you’re worried about as ‘runaway convention’ sky-is-falling conspiracy nonsense.
Suffice it to say I’m extremely skeptical of anything TYT is attached to.
Gosh, you don’t suppose Koch backed politicians would lie about the real goals?
‘[Buchanan’s]prescription was a “constitutional revolution”: creating irrevocable restraints to limit democratic choice. Sponsored throughout his working life by wealthy foundations, billionaires and corporations, he developed a theoretical account of what this constitutional revolution would look like, and a strategy for implementing it.
….
‘The papers Nancy MacLean discovered show that Buchanan saw stealth as crucial. He told his collaborators that “conspiratorial secrecy is at all times essential”. Instead of revealing their ultimate destination, they would proceed by incremental steps. For example, in seeking to destroy the social security system, they would claim to be saving it, arguing that it would fail without a series of radical “reforms”. (The same argument is used by those attacking the NHS). Gradually they would build a “counter-intelligentsia”, allied to a “vast network of political power” that would become the new establishment.’
https://www.theguardian.com/commentisfree/2017/jul/19/despot-disguise-democracy-james-mcgill-buchanan-totalitarian-capitalism
My guess is that they will be surprised at what would happen. The libertarian right would push to have it happen but the bathroom bill folks would probably take it over. It would probably make the recent healthcare debate and votes look organized and coherent.
Well, if they take the view that you just need 34 states to call for a convention (any convention) then we are screwed. The wing nuts over on the right are just 7 states shy and have both chambers of enough legislatures to get there.
http://bba4usa.org/report/
If you add the 5 states wolf pac has gotten then we are only 2 shy.
https://en.wikipedia.org/wiki/Wolf_PAC
> they’re mad about big money in politics too,
Mad about there not being enough of it maybe…
Nah…each side is only mad about the OTHER side’s big money donors in politics. They want to protect their own purchasers, err, big money donors.
got to get those unions out of politics, it’s a real problem!
/s just pretending to be a rightwinger there
Thanks for picking this up. I’d read about the increasing possibility over the past year or so. I think your point about to what degree people realise balanced budgets (at the Federal level) are bad is critical. I do wonder in my pessimistic moments whether even those who realised it was a mistake in their State might still think that Federally it’s a good idea (maybe trusting that inter-state transfer payments will always bail them out if they as a state are in trouble – and hurt those blue state creditors in the process – might not be an unattractive proposition).
I think there needs to be a Lakoff-style change in attitudes towards Federal deficits – perhaps prompted by some clever young thing who can do one of those three minute animated YouTube videos that can “change the mindset to a MMT style one” among people. Otherwise even darker times may lie ahead.
That’s my path to a civil war. Pubs push through some amendment like “Freedom of Religion Amendment”.
“Well my religion says that blacks are devil spawn, so I don’t have to serve them”
Or the “Life Begins at Conception Amendment” Where AG Sessions sends in the national guard to shut down CA abortion clinics.
I can already see a shade of it in Sessions advocating civil forfeiture and trying it out here in OR where legal pot is now about all the economic groaf one can find (Just try to hire a fencing contractor–they are all out building the mandated 8 ft fences around the legal pot farms!)
A lot of those pot farmers are already armed, because of the cash they have around (banks won’t touch it, for the same forfeiture reasons). A gun battle with the Feds is all too possible. And that won’t be popular with the locals, right or left. OR has a pretty strong libertarian “leave me the hell alone” bent.
‘OR has a pretty strong libertarian ‘leave me the hell alone” bent’
Dear Oregon,
This is one of the reasons you’re lovable. Not snark at all. Please take us with you when you go.
Best Regards,
Washington
Man, I would be happy (overjoyed, in fact) if Texas would stop making plans to secede and just go ahead and do it. With the proviso that they take Kentucky with them (meaning the noxious creationist museum goes as well).
We may have to airlift in books to Austin.
Thanks for this post. You can bet ALEC, even with infighting, has model legislation for a Constitutional convention all ready to go.
http://www.prwatch.org/news/2017/08/13272/infighting-legal-questions-slow-alec-push-second-constitutional-convention
To me, the infighting indicates they think they’re close enough to their goal that secondary in-group differences are manifesting. The really worrying part is that they think they’re close to their goal. Counting on GOP dissarray is not a plan.
edit: “Counting on GOP dissarray is not a plan for stopping or reversing bad legislation.”
They may only be fighting for pride of place in their dreamed of new world.
http://www.prwatch.org/news/2017/03/13229/koch-brothers-bankroll-constitutional-convention
I think you are correct in your [unstated — though evident] assessment of the kind of Constitutional Amendments we might see spring legs.
I don’t want any attempts at Constitutional Amendments. Too much money and clout is held in a very small number of filthy hands. Constitutional Amendments are too hard to get rid of. Besides even if the kinds of Amendments we need were passed they would find no enforcement.
We already have high courts, laws, a Congress and Senate and an Executive Branch — all captured and variously held — but not by any group or force concerned with or beholding to the populous. Constitutional Amendments are very far from what we need.
Well, if I understand correctly, that such conventions are supposed (?) to be open-ended, theoretically with any number of potential amendments under consideration, then omg seems a perfectly reasonable response, if not ZOMG GO BLUE (btw, anyone tell me what the Z is adding, I can’t figure it out)
Balanced Budget Bullies would definitely take the forefront, but they’d have to elbow aside Flag Worshippers and God Botherers and who knows who else? Seriously, who knows? I’d like to hear different ideas. I wonder if popular movements like single payer or perhaps more to the point, the campaign to remove corporate ‘personhood’, might take advantage of the open-endedness of such a convention? To force consideration, force Repubs and Dems to take public positions?
I could also see such a convention being a serious strain on a heavily gerrymandered and illegitimate system, and a catalyst for secession.
as of this moment NO. The left is weak and disorganized. There are signs that it is waking up and organizing, but it is still very weak. Witness the Nissan vote.
I see your point, and agree this would not be an optimal time for such a convention in the context of popular struggle. I wasn’t really advocating having such a convention (which may have been unclear), only how more democratic entities might respond. The whole thing sounds pretty scary, yes.
It’s organizing in all the wrong ways. It is all coalescing around “Social Justice” and radical 3rd wave gender-denying feminism. It’s all about labeling ANY speech that disagrees with it as “hate speech” (even when it is coming from LEFTISTS…it’s just that THEY are so far left that ANY opinion other than theirs is “fascist” to them). They think there’s a multitude of fluid genders rather than actual biologically determined two genders. They demand “safe spaces” and “trigger warnings” and seek to fire or shut down professors or anyone else who so much as looks at their views cross-eyed. Look to Evergreen College…THAT is what the left is coalescing around. Look at Canada and Sweden where they are literally anti-boy, anti-male (particularly white male, but ANY male is actually the “bad guy”…oh, oops, I just assumed their gender!). This left is actually siding with Sharia Law and radical Islam, calling any criticism of any Islamic practices, or fears of spreading Sharia in the West (as is seen in many places throughout Europe with no-go zones, Sharia Patrols, harrassment of women without head coverings, etc) as “Islamophobia”.
If this is what the left is becoming, then I’ll side with the Koch heads and Christian nutters. In their evil and insanity, they are STILL better than the SJW/Feminista crazy that is the new left/Democrap party.
“radical 3rd wave gender-denying feminism”
Nice right-wing meme there.
“They think there’s a multitude of fluid genders rather than actual biologically determined two genders.”
There’s a difference between sex and gender.
“Look at Canada and Sweden where they are literally anti-boy, anti-male (particularly white male, but ANY male is actually the “bad guy”…oh, oops, I just assumed their gender!)”
Ah, hyperbole.
“as is seen in many places throughout Europe with no-go zones”
You know this objectively isn’t true, right?
“If this is what the left is becoming, then I’ll side with the Koch heads and Christian nutters. In their evil and insanity, they are STILL better than the SJW/Feminista crazy that is the new left/Democrap party.”
Even if everything you claimed above were true, I love your conclusion that the side whose various objectives range from Neo-Feudalism to a real life recreation of The Handmaid’s Tale are preferable to the side that is okay with dudes wearing dresses.
A bunch or right wing memes and cherry picked examples to back them. Not helpful or a legitimate addition to the conversation.
The real left is currently trying to figure out how to present a real populist agenda to the people to combat the completely fake one Trump offered his base. There is a lot of work to be done, but this ignorant dumpster fire of a strawman you just created has no basis in reality.
This Sharia Law B.S. is so old at this point. The left is asking the right to judge people by their individual actions regardless of whether they practice Islam or not. Anything else quite simply is Islamaphobia. Here’s a couple word definitions for you as well, you seem to be struggling:
Gender – Either of the two sexes (male and female), especially when considered with reference to social and cultural differences rather than biological ones. The term is also used more broadly to denote a range of identities that do not correspond to established ideas of male and female.
Sex – Either of the two main categories (male and female) into which humans and most other living things are divided on the basis of their reproductive functions.
There’s no path for advocates for any “popular movement” for causes not supported by the Republican and Democratic establishment to get representation at the convention.
Article V doesn’t specify how delegates would be apportioned. Does any state have laws or constitutional provisions regarding how delegates would be elected/appointed? If delegates are to be elected, what campaign finance and ballot access laws would apply? What would be the national or state party rules about primaries, caucuses, debates? How would the convention itself be funded? If all this has to be decided by the states or Congress, no single payer advocate is going to be part of the decision-making or even considered as a stakeholder in the decision.
For those who advocate policies putting the common good ahead of benefits to the oligarchs, an even worse outcome than not being represented would be if there were oligarch-friendly amendments passed at the convention. How much potential organizing and community building energy then has to get diverted into fighting against state ratification?
One can only hope that state legislatures realize that federal funding that benefits their states/donors, probably depends a lot on a not-balanced federal budget, and that this whole enterprise doesn’t come to pass.
edit: While my comment is awaiting moderation, I see you’ve clarified your own position. Take this as a general response to people who do still think there’s a chance for some positive input to this process. :)
And the anti-corporate personhood people are taking the the A to C route for amending, correct? Proposed in Congress and ratified through state legislatures? I begin to see what Rev Kev gets at below, that no one in their right mind would propose one of these things unless they held (or believed they held) enough political power to control it. Enter the Kochs…
It still seems to me a weapon that would be very dangerous for anyone to wield, festooned with big, red warning stickers about Unintended Consequences
“..enter the Kochs”…(as documented here, in relation to push for Constitutional Convention):
https://www.democracynow.org/2017/6/29/republican_push_to_replace_obamacare_reflects
https://www.democracynow.org/2017/6/29/republicans_have_trifecta_control_of_25
Richard:
The Amendments to the Constitution is not something I have study much, but from what little I know of, the were passed after a lot of prolonged screaming, yelling, and debating. With groups formed to advocate for them like the Temperance League, or the Abolitionists. Sometimes for decades. Even if many people did not like a particular one, most people had a chance to say something, and the prolonged debates gave legitimacy to the changes.
That is important because for laws, and governments, to be obeyed they must be legitimate to the general population. Unless of course, as in North Korea, or Stalinist Russia, you are willing to use massive, and deadly, force which sometimes fails anyways.
If somebody(s) rams through some amendments without getting some mainstream support after some serious public debates, and not just from the Blue or Red factions, those amendments would not be legitimate, the Constitution might lose legitimacy. I think you are right about
But foolishness seems to be doing just fine nowadays.
> anyone tell me what the Z is adding, I can’t figure it out)
I hate to quote Urban Dictionary but:
I suspect it is like “pwned” for “owned”. It was a typo, like a lot of stuff from hacker culture/hacker/internet chat speech.
Like “All your base are belong to us” butchered English.
Just a guess: maybe it’s a Shakespearean “Zounds!”
The last one of these Conventions, which was a while ago, proposed effectively only one amendment, but that amendment was the total replacement of the Articles of Confederation with the current Republic. In counting the 34, consider the possibility that someplace a heavily Democratic legislature has the bright idea that such a convention can be used to repeal the Second Amendment, and acts on their not necessarily brilliant idea.
There is also the little-known interpretation of the clause on reducing the number of Senators in a state…that one bit of the Constitution needs unanimous consent of the 50 states to amend.
George Phillies:
Yes, and one of the reason for that Convention besides to amend, or replace, the unworkable Articles of Confederation, was because of Shays’ Rebellion. The rebellion was against the government of the State of Massachusetts because of the extreme taxing and debt collection of that government for the financial elites against small farmers (many of whom were former soldiers). This also freaked out the elites of the other States. Replacing the decentralized Articles with its weak central government with the more centralized Constitution with its stronger central government allowing greater force against the uppity plebs.
So some folks do agree with Ayn Rand about going John Galt? End of the US then. I for one will welcome our Chinese overlords.
And I am sure some folk will press for a Handmaid’s Tale society ;-(
I think one of the objectives behind the constitutional convention would be to return America to being great again, i.e. before the Clean Water and Air Acts, Civil Rights Act, the 19th Amendment, and the 16th Amerndment. 1912 was a great year.
More likely, repeal the Thirteenth Amendment … that’s what they really lust for, by hook or by crook.
And yet, the Democrats still refuse to Fix Their Problems.
Better raise more soft money to pay those high-priced consultants for “improved messaging”.
This is a late-stage empire in decline.
Yes, the Democrats suck. They’re terrible on a lot of issues and they’re bought. They’re also swamped by Citizens United money. All that dark money comes swirling into state legislatures and judicial elections and drowns left-leaning politicians before their careers can even begin. Is it any surprise that since the CU ruling the Republicans have walked the table? No, it really isn’t.
Yes the Democrats suck, but there’s a reason the table is so tilted now.
Dem overreach used to mean free cheese for undeserving poor, arguably less bad than Rep overreach of stupid wars with more billions going to billionaires
The current Democratic establishment are a Republican fifth column dedicated to preventing the Democrat Party from running true left progressives. Trust me they are very content with tax cuts, balanced budgets, mass incarceration and military spending. Their latest refrain quoting Hillary, “Whose going to pay for it?” Remember Hillary’s confession that she was a Goldwater Girl and proud of it. Their strategy has been to win over suburban socially liberal Republicans. Trust me “the resistance” is actual a faux resistance. They are much happier with Trump than they would have been with Senator Sanders.
We should abolish the Electoral College and make the Senate elected by proportional representation. But there’s no way something like this could ever happen. We’re far too polarized for the bipartisanship necessary for changing the constitution.
I am glad the Electorial College remains intact. The wisdom of our coasts gives me little comfort. The lost lands of flyover country must be heard regardless of the wax in the ears of our Coastal Cities. And better yet — why not listen to what they have to say? They are not that alien from our ways. They see things differently and sometimes more clearly.
So we should make their votes count as more?
Why not have blacks’ votes count for more then? Or women’s? Gays’? They are far poorly represented in/by government than people from small states.
The electoral college was designed initially to keep the masses from actually having democratic powers (if they elected someone the wealthy landowners didn’t like, the electors could pick a different candidate). Now it arbitrarily takes one group of society (people from smaller states) and gives them stronger representation in government. And it’s not even a city vs. rural thing, either, because no one has to listen to people in rural areas in larger states thanks to the electoral college.
The end result is that your vote doesn’t even count if you’re not from a swing state. Then we wonder why there’s so much political apathy.
Our system is built around protection against a dictatorship of the majority. It is focused on protecting minority rights while still getting, roughly, a consensus.
I am a Mid-Westerner. I do NOT want LA and NY to always choose MY President. The Prez must be the Prez of ALL people, including the huge center of the country, including the rural and small town people. I’d rather see the country break apart into multiple smaller countries, which WOULD happen if the coastal liberals were the sole choosers of our Presidents than get rid of the EC. The EC helps keep the country together, like it or not. Get rid of it and I guarantee you would see rebellion from the vast center/west of the country as they are ignored in every Presidential election from that point on.
There are not enough seats in the Senate to work with proportional representation. It can work for the House, but not the Senate (as it is currently setup with a mere 2 senators per state). How would you EVER get a 3rd party senator elected, or a partial senator elected, as would need be the case with only 100 senators/2 per state?
I’d prefer a new setup that kills the two party system entirely and gives other parties virtually equal access/chance of being elected. The current system penalizes 3rd parties and virtually guarantees only the two party system so the two parties are strongly opposed to anything that might loosen their grip on power.
New York and LA combined represent about 10% of the population. They would not elect the president.
How about the small-town Republicans in New York and LA? Their votes don’t even count thanks to the EC.
Do you really think candidates change their campaigns or policies to placate the voters of these small states? Do you think either the Republican or the Democrat will change anything at all about his/her platform for Idaho’s 4 EC votes, when everyone knows Idaho will vote Republican?
I’d rather have a system where the population actually gets to elect their president rather than only the voters of a few states.
In regards to your posts about the Senate, it’s simple. Abolish the two Senators per state rule and make it proportional. We’d have 2 to 3 Green Party and Libertarian senators. Everyone still is represented in Congress through their district’s representative. The Senate gives a ridiculous amount of power to the people who happen to live in THE CITIES of small states while taking away power from people who live in THE COUNTRYSIDE of people in large states. Of course this will never happen because of the wording of the Constitution, but neither will a constitutional convention, either.
NO.
The electoral college guarantees that candidates for President MUST travel across many states and speak to many constituencies in order to pull enough electoral votes to win. If you scrap it and go with majority rule, then LA, San Fran, New York, and a couple other cities will exclusively be the sole electors of all subsequent Presidents. I’ll be damned if I allow a bunch of elitist city swine select every President from that point on. NO. NO. NO.
MOST of the country would be totally ignored by candidates in favor of a few megalopolis’. Screw that.
Most of the country is totally ignored by candidates. The only places that candidates care about are the cities of a few swing states. You prefer that to actually letting the people choose their president?
The only argument you’ve made is that you’re from a small state and you think your vote should count as more. Why not give that privilege to black people? Or people who are actually from rural areas, many of whom do not matter at all because of the EC (either their state is decided or the candidates are focusing on the large cities in that state).
I’m not sure Dems in CA will hold their legislative super majority after 2018. Brown passed a hefty tax on gasoline which will hurt the people who use gas the most – truckers and other working class people who have long commutes to work. I’m sure that will be a big part of any Republican campaign.
Otherwise, a Constitutional Convention at this time is a terrible idea. No one with good intentions is pushing for it (and my understanding is that a CC isn’t what Cenk is pushing).
Well, no. The people you disagree with are your fellow Americans and also have good intentions.
They just are not the same as your intentions.
I assure you, some of them have bad intentions and they don’t care what we peasants think. Let them defend themselves, they can afford it.
The elites don’t need no stinkin’ constitutions, remember they are above the Law ….
I just read a post from Diane Ravitch from a few days ago:
Jennifer Berkshire Interviews Nancy McLean [sic] on the Racist Origins of “School Choice”
Lambert posted something about Maclean’s new book, Democracy in Chains, a few days ago. Relative to the topic of Constitutional Convention is this comment from the Ravitch post [my bold for emphasis]:
Hmmmm. John Michael Greer wrote a book about the United States not far down the track called “Twilight’s Last Gleaming”. In it, a Constitutional Convention is held just after a major military defeat and after a lot of screaming and shouting, an Amendment is adopted which breaks up the United States into its component States.
A new Confederacy is formed, the new United States is forming based around the original 13 colonies and so forth. You get the idea. Maybe, like public inquires, a Constitutional Convention should not be held unless you know exactly what the result will be. Otherwise you may end up with Forrest Gump’s box of chocolates!
See footnote [3].
Dear Lambert
In the words of that great philosopher H. Simpson – “Do’h!”
Our Bill of Rights will be shredded.
That is the elites’ main goal of a Constitutional Convention.
lambert, just want to say what a great post this is and excellent analysis.
This is a bold article containing important thoughts that need to be discussed.
I am a Pom and most regrettably can take no part in this discussion but I wish America well.
The same situation of government out-of-control arose in Britain in the Great War between monarchy and democracy and many details of what the people then sought to do can be read at http://www.houghton.hk/?p=223.
Good luck.
…”government out of control” meme is sorely lacking…it’s whose “control”…acquaintance Frank Herbert defined in “Dune”, “He who can destroy a thing, controls a thing..”
Since 2007 Wall $treet frauds-financial sector theft, Wall $treet has had ability to destroy U.S. economy:
https://www.thenation.com/article/why-fdic-insuring-jamie-dimons-mistakes/
“JPMorgan Chase shrewdly parks virtually all of its vast derivatives holdings in its commercial bank subsidiary. In the event of a collapse, the bank can use its deposit base to pay off the derivatives, while leaving the Federal Deposit Insurance Corporation to reimburse depositors if their money runs out. This is not a trivial technicality. JPM is the world’s largest purveyor of derivatives. Its total contracts have a notional value of $72 trillion—and 99 percent of them are booked at its FDIC-insured bank. In the event of failure, sorting out the claims and counterclaims will be a costly nightmare for the FDIC. The bulk of the contracts are “plain vanilla” derivatives used as standard hedges against price or currency changes. The exotic derivatives, however, are dangerous—the kind that suddenly blew up in Dimon’s face some weeks ago, when his bank swiftly lost at least $3 billion on one complicated market gambit, with maybe more losses to come.
We are “insuring” other big boys of banking in the same way. Citigroup has nearly all of its $53 trillion in derivatives in its FDIC-insured bank; Goldman Sachs has $44 trillion parked at an FDIC-backed institution. After Bank of America purchased Merrill Lynch, BofA began transferring the securities firm’s derivatives to the FDIC-insured bank, which now holds $47 trillion in contracts. When Senators Sherrod Brown and Carl Levin, among others, complained that regulators’ acquiescence in these transfers contradicted Congressional instructions in the 2010 Dodd-Frank reform law, the Federal Reserve, the FDIC and the Treasury Department’s Office of the Comptroller of the Currency refused to answer their objections. This matter involves “confidential supervisory” and “proprietary business information,” the three agencies responded in unison.”
nonclassical:
This deadman’s switch of Wall Street presupposes that Congress would go along with it especially as the FDIC (as I understand it) is meant to cover individual depositors not megabanks a bail-in for their mistakes.
If the crisis is smaller than the 2008 disaster who knows as Congress and the various regulators are all in the tank for the Lords of Finance. If it got as big, or bigger, the Democratic and Republican Parties might be more concerned for their immediate political survival than in making the banks whole, but course would have thought so before 2008. Then again, despite having a sovereign currency, I don’t think the United States could print the trillions of dollars needed.
What is to prevent the Federal Government puttng all the banks under new management like they do with smaller banks? The Feds do have the authority even if they bail the banks out again.
And yes, I am going back and forth on this. I am trying to wrap my head around the idea of such wholesale blackmail. :-)
You forget the banks were terrified and prostrated at the end of 2008 and in early 2009. It was Obama who chose to be on their side, and he made it clear when he said, “I’m the only thing standing between you and the pitchforks.” There was no blackmail. It was a completely voluntary sellout.
If I understand you, the Federal regulators under President Obama leadership assisted the banks in creating the Deadman’s Switch?
That’s some serious regulatory capture, especially when they came within less than a day of freezing the planetary financial system with the The Great Depression now Supersized. I’m only partially tongue-in-cheek asking if bribes or blackmail was involved.
Remember Congress, I don’t know when, passed a law making derivatives first in line in the division of funds after bankruptcy, so there won’t be all that much confusion about who gets what when it all melts down. When the music stops, the banks and elites will all be on the winning side of the derivatives, pension funds, insurance companies and public institutions will all be on the losing side. Then comes martial law. That’s the plan. What did Rahm Emmanuel say, “Never let a crisis go to waste”
I don’t agree with Yves, that the banks were terrified. Obama was elected, by pretending to be a progressive, for the very purpose of bailing out the banks. That is what he was groomed for. There are no longer free elections in this country. You cannot vote against Goldman Sachs. $26 trillion later. Likewise the reason Posse Comitatus was repealed by Obamanator. The fact that they used the TARP money to pass out enormous bonuses for themselves for crashing the economy, shows just how scared they were.
Why was it Obama and not McCain, neo-liberal scion. I believe it was anticipated that the right would be harder to convince that this was just a random cyclical event. The Tea Party movement illustrates that. The elites figured that the left, mesmerized by social issues and identity politics, with the suppression of Marxism, economically ignorant, would be easier to fool. They were right, weren’t they?
It is time to get past the notion that all of this was by accident. This has been a multi decade criminal conspiracy, ever since Lewis Powell’s memorandum. It is the ’60’s that really terrified the elites, hence the multi decade criminal conspiracy. Yes the fact that Leo Strauss and James Buchanan recommended secrecy makes it a conspiracy. Likewise Clinton’s public position vs her private position. Sounds like conspiracy to me. Likewise the banks were exempted from RICOH prosecutions. Funny that!
Sorry, I may be a bit slow. Have i not witnessed the crumpling and wiping of the TPTB asses, with our constitution. What is this of new amendments that can be shit on next. Do they need new parchment.
Revoking jus soli is probably the most likely thing based on current trends.
If I got my history of the US correct ( I might not), I’d say that Democrats were proudly standing next to each major cockup in the US history, as either instigators, or helpers. So you could call it a proud tradition.
Mark Levine, a Right Wing Hate Monger (talk radio and now his own tv show)
has been pushing this for years.
His number of listeners is now nearing Rush Limbaugh’s and Sean Hannity’s.
He calls it an Article V Convention of the States.
He was behind Ted Cruz in the 2016 presidential election.
He writes books and pretends to his listeners he is a constitutional scholar. He worked for the Regan administration as a deputy attorney general I believe.
He is very dangerous as he pretends such a Convention would return power to the The People (but only the Right Wing “Conservatives”), and never mentions at all the corporate grab that is the true intention of this push for a Convention.
I think a convention is the best chance we have of successfully navigating the terrain of the future as an intact country, or at least in avoiding 1861-1865 redux.
A looser federal construct, with far more restricted federal powers — as opposed to the expansive, centralized administrative state of today — will be better able to manage the rising regionalism and disparate forces operating within our country. We are not and have never been a coherent polity. With the weakening of our empire, the binding forces will similarly weaken. We can accommodate this reality or fight it, but if we choose the latter, we will lose, possibly disastrously. I’d like to avoid that.
A convention is the best option we have of scaling back federal power in a peaceful manner.
I’m, boy, a constitutional convention, to protect our masters. Which masters? Would they choose limiting voting to only illegals can vote? Or no taxes on those with more then a million in the bank? Or house troops in your home? Or they own it all? Gee, sounds like now codified. You will think no I’ll of the masters. Otherwise they will be unhappy.
But, liberals pushing that agenda? No, in the Midwest, and further west, it’s pushed by the birch party. Oh, you haven’t heard of them since the 60′ s? Back then, they supported the white robed people, and the skin headed, and the extreme communist groups. Anti labor, anti fair trade, anti good for people, anti middle class, anti others improving their status. It’s amazing to hear this now being preached in sermons, in all the religions.
If a Convention were ever called, it WOULD include a balanced budget amendment proposal (a proposal to permanently impoversh the vast majority of Americans and guarantee the collapse of the nation) and a “life” amendment that expressly bans all abortion (and probably many forms of birthcontrol).
The only amendments I’d be in favor of is a strengthening and clarification of the 2nd Amendment to make it clear that an INDIVIDUAL RIGHT TO BEAR ARMS is the right and an amendment that declares what is obvious: corporations are not people and corporate money must be/can be barred from all elections (like it was for the Founders). Hell, I’d like to see the “corporations are not people” amendment go further: ban limited liability corporations – all corporate officers are personally responsible for the bad/harmful actions of their corporations (just like it was during after the Founding…corporate officers were personally liable for law breaking by their corporations AND corporations were restricted to short periods of existence. Bring that back. Force corporations to re-incorporate every 10 years, paying a fee each time, and have a mechanism in place to immediately liquidate/close down any corporation that violates the law, arrest all corporate officers for the crime, seize their assets for compensating victims or for environmental mitigation, and sell the corporation off.
Am amendment that explicitly states that:
1. Money is not speech and shall be regulated, and
2. Corporations are not people and therefore have no inherent rights whatsoever,
is desperately needed. However a convention is too risky given the religious fervor of the corporate/WASP ultra-right that currently is attempting to wield power like a scythe.
If there was a party of the left to balance things, this might be a good idea, but instead we have the Dems.
Fair enough. All billionaires are bad, because nobody should have that much more wealth than the vast majority of people in the country and on the planet.
But some billionaires truly are worse than others, and Charles and David Koch are especially bad, as are many of the billionaires who are part of the Koch donor network. The activities of the DeVos and Mercer families are quite disturbing. Many Naked Capitalism commenters have read Dark Money by Jane Mayer, and I recommend the book to anyone who hasn’t had a chance to read it yet.
Here’s an Amendment for consideration: your right to vote goes away after you reach a certain level of wealth. The actual level of obscene wealth that is the cutoff for voting rights, and the right to donate to campaigns, etc, can be determined after a thorough study, but the intent would be to eliminate the value of reaching beyond a certain level of wealth.
It should also include a cap on income…a max income as well as a min wage.
Another Amendment: no international agreement, treaty, or organization can overrule US law and the Constitution. No trade agreement can ever lead to US laws or regulations (environmental, work, consumer, safety), duly enacted, ever being challenged and overturned by any supranational entity or body. The Constitution, Bill of Rights, and all US laws and regulations that are birthed from the same are ALWAYS and FOREVER supreme in the USA. That the USA will ALWAYS retain full right to police and control its borders (no Schengen type agreement in N. America where open borders leads to uncontrolled migration from anywhere).
The Constitution already has priority over treaties, although this is somewhat vaguely stated in the Constitution:
In 1957, the Supreme Court ruled that this does mean that the Constitution supersedes any treaties:
https://en.wikipedia.org/wiki/Reid_v._Covert
Treaties probably have priority over laws, though. However, some proposed international agreements wouldn’t be treaties, such as the TPP. Any international agreement that can be considered by “trade promotion authority” or “fast track”, is not a treaty. A treaty must be confirmed by 2/3 of the Senators who are present:
NAFTA is not a treaty:
https://en.wikipedia.org/wiki/North_American_Free_Trade_Agreement
61 is less than 2/3 of 99.
The wording is there: a Treaty is the supreme law of the land (notwithstanding anything else in the Constitution). Sure, TPP, TTIP, etc, are not treaties in the factual sense, but they are treated exactly like treaties, Congress treats them like treaties, the courts treat them like treaties, and apparently the ACLU and other civil liberties groups treat them as treaties too since they do NOT go to courts to shut down ISDS rulings or powers. Everyone lets ISDS slide as if they are iron law and must be obeyed. The President treats them as such too..so EVERYONE treats the trade deals as treaties, giving them “Law of the Land” status even though they are not treaties, in technical fact.
NAFTA, not a “treaty” but treated as if it is. When there’s a conflict between US law and NAFTA, US law looses.
They quack like ducks so they seem to be ducks, notwithstanding the Constituion.
I don’t think that the Supreme Court (or any court) has ever ruled on whether or not NAFTA is a treaty. A court did rule that NAFTA is constitutional, but that could mean that it is merely equal in authority to other federal laws, and not that it has the authority of a treaty.
http://articles.latimes.com/1999/jul/24/business/fi-59072
Ruling (tl;dr):
http://law.justia.com/cases/federal/district-courts/FSupp2/56/1226/2449292/
Does anyone know whether there has been a ruling on whether or not NAFTA is a treaty?
Well, here’s the thing. As much as I think the right wing is chock a block foaming at the mouth insane and completely detached from anything I can consider reality, they didn’t manage to repeal Obamacare inclusive of virtually killing Medicaid.
Some of the push back against killing Medicaid came from state governors. So, I have the hopes that state governments could be made to see through this Trojan Horse to the profound havoc a balanced budget amendment at the Federal level would wreak locally.
But if it did go through, I imagine the red welfare states will end up screwing themselves again on the inevitable day that the blue states start refusing to send them money via the federal wealth transfer mechanism. It’s not like NJ and CT don’t have their own local budget problems.
I have been wondering if the election of Trump is the beginning of a political “Minsky moment” where the two primary parties have been getting complacent and assuming the status quo will remain the status quo (low volatility) setting up the seeds of its own future instability. The election of Obama (not an establishment candidate even though he devolved into an establishment president), followed by the Tea Party disruption of the political parties would be those deteriorating technical conditions. Trump became that first big crash in the market that sometimes precedes further instability.
Does this have anything to do with Venezuela? Because if it’s to smear Bolivar’s Homeland, better don’t even start with it. Over 8 MILLION people voted in the elections for the Constituent Assembly there even under the bullets of the “democratic” opposition which “in the name of freedom” has been burning people alive on the streets. American oligarchs will rather blow the world into pieces than allowing a Constitutional Convention in the USA – corruption to the extent of “pro-democracy” fanaticism.
“The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities….”
Does that actually mean anything at all?
“Which any MMT advocate would regard, correctly in my view, as demented.”
Yes, EXCEPT that a balanced budget amendment would, in effect, put us back on the gold standard, making MMT irrelevant.
Let’s remember that full-fledged fiat currency, that MMT is based on, is a new thing – since Nixon, I believe. If I can remember the beginning, it isn’t real well established, and many people are still very uneasy with it.
More generally: Personally, I consider the Constitution something of a botch – it’s a wonder we’ve made it so long; or maybe not, considering the Civil War. The vice-presidency, the Electoral College, and for that matter the imperial Presidency spring to mind. So in principal, I think a Convention is a good idea. The trouble is, it depends, completely, on how the delegates are chosen. If they come from Republican-controlled state legislatures, I’m emigrating.
Remember, also, that anything the Convention does has to go back to the States (meaning that a Convention makes us a Confederacy again). That takes a while, and the legislatures will be different by then.
No, that is incorrect.
1. The main perceived virtue of the gold standard was that it fixed exchange rates between countries. However, countries regularly devalued, so it was hardly sacrosanct. In addition, as Keynes explained long form as the reason for his Bancor proposal, countries that set their currency prices in gold terms low so that they’d run regular trade surpluses were effectively cheating and there was no way to discipline them. Finally, the gold standard guarantees deflation, which is worse than inflation (it leads to regular financial crises, bondholder defaults, and bank failures).
2. All the other countries in the world use fiat currencies. I have no idea who you think is uncomfortable with it, since trillions of dollars of FX transactions are done every year and no one who participates in them is bothered.