Liberal Utopia: Article V Convention

Sunday, July 07, 2013

We the People have sole power to decide what marriage means in our own states.

n the application of 34 state legislatures, Congress is required to call a convention for proposing amendments to the Constitution. When each legislature makes that application conditional — that is, unless the convention has a specific and exclusive purpose, the application is rescinded — there exists no risk of an open-ended convention. With their states effectually in charge of the convention, no business will be in order except what they allow. As the framers of the Constitution intended, Article V leaves it entirely to the makers of the application to decide not only why but when, where, and how they wish to proceed. Congress's only job is to issue a call officially announcing their wishes. Alexander Hamilton gives the reason for this in Federalist 85.

: By the fifth article of the plan, the Congres will be obliged "on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof." The words of this article are peremptory. The Congress "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.

This means the state legislatures making these applications, if they want to give them real meaning and effect, must be much more explicit than they generally have been in the past concerning not only their applications's subject matter but the times, places, and manner of holding the conventions they intend their applications to oblige Congress to call. Several of them were during the 1950s, including South Dakota and Texas in their "Mode of Amendment" application. Otherwise, the best the legislatures may hope to achieve with their applications is a figurative shot delivered across Congress's bow warning it of further measures at the states's disposal beside merely expressing their frustrations with federal inaction — which was the case preceding formal proposal of our Bill of Rights. James Madison, known as the Father of the Constitution, is reported in the Congressional Record as saying,

: He [Mr. Madison] had no doubt but the House was inclined to treat the present application [of Virginia's legislature] with respect, but he doubted the propriety of committing it, because it would seem to imply that the House had a right to deliberate upon the subject. This he believed was not the case until two-thirds of the State Legislatures concurred in such application, and then it is out of the power of Congress to decline complying, the words of the Constitution being express and positive relative to the agency Congress may have in case of applications of this nature.... From hence it must appear, that Congress have no deliberative power on this occasion. The most respectful and constitutional mode of performing our duty will be, to let it be entered on the minutes, and remain upon the files of the House until similar applications come to hand from two-thirds of the States.

Because the United States has no delegated power to decline complying in full with an application in which two-thirds of the state legislatures concur, this method of proposing amendments reserves to every state the power to practicably promote and safeguard the consent of the governed against any Congress, president, or court that appears indifferent or hostile to that consent. Under present circumstances, it is the best if not only method available by which our states truly can promote and safeguard our consent with respect to marriages and other domestic relations. Following are a sample application, state legislature concurrence, Congressional call, and convention resolution for accomplishing this:

Sample application of a state legislature

A RESOLUTION MAKING APPLICATION TO CONGRESS TO CALL A CONVENTION FOR PROPOSING A DEFENSE OF MARRIAGE AMENDMENT TO THE UNITED STATES CONSTITUTION

WHEREAS, under Article V of the Constitution of the United States, amendments to the Constitution of the United States may be proposed by the Congress whenever two-thirds of both Houses deem it necessary, or on the application of the legislatures of two-thirds of the several states the Congress shall call a convention for the purpose of proposing amendments; now therefore,

BE IT RESOLVED BY THE LEGISLATURE OF ALABAMA, BOTH HOUSES THEREOF CONCURRING, That pursuant to Article V of the Constitution of the United States, the Legislature of the State of Alabama hereby makes application to the Congress of the United States to call a Convention for the specific and exclusive purpose of proposing an amendment to the Constitution of the United States reading substantially as follows:

"Article --.

"Section 1. The power to give in one State full faith and credit to the public acts, records, and judicial proceedings of another with respect to marriages and other domestic relations contrary therein to the constitution or laws of such State, and to define therein all such relations, is reserved to the States respectively; and the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States with respect to any such relation whatsoever.

"Sec. 2. Congress shall make no law respecting marriage or other domestic relation, except what may be absolutely necessary for carrying into execution its powers and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof; and nothing in this Constitution shall be so construed as to affect in any way the power reserved to the States respectively by this amendment.".

BE IT FURTHER RESOLVED, That the Convention meet for that purpose at the place in which the most numerous branch of the state legislature first making such application is sitting, on the one hundred and twentieth day (Sundays excepted) after application of the legislatures of two-thirds of the several States has been made, and be composed of delegates appointed by the several States, with each State appointing, in such manner as the legislature thereof may direct, at least one delegate (but in no event more than five), provided no Senator or Representative in Congress, or person holding an office of trust or profit under the United States, be appointed a delegate.

BE IT FURTHER RESOLVED, That all votes in the Convention be taken by States, the delegation from each State having one vote, with a quorum to do business consisting of a delegate or delegates from a majority of the States, and a majority of all the States being necessary to an agreement, approval, or adoption of the Convention on any question, order, or resolution.

BE IT FURTHER RESOLVED, That the Convention choose its president and other officers, determine the rules of its proceedings, punish delegates for disorderly behavior, with the concurrence of two-thirds of all the States expel a delegate, and keep a journal of its proceedings and publish the same after it adjourns sine die.

BE IT FURTHER RESOLVED, That the article approved by the Convention be proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.

BE IT FURTHER RESOLVED, That this application constitutes a continuing application in accordance with Article V of the United States Constitution until at least two-thirds of the legislatures of the several States have made application to the Congress of the United State to call a Convention for the specific and exclusive purpose of proposing an amendment to the Constitution of the United States reading substantially as that contained in this resolution.

BE IT FURTHER RESOLVED, That if Congress proposes, within 90 days after the legislatures of two-thirds of the States have made that application, an amendment to the Constitution of the United States identical with that contained in this resolution, then this application shall no longer be of any force or effect.

BE IT FURTHER RESOLVED, That this application be deemed null and void, rescinded, canceled, and of no effect in the event that a convention for proposing amendments includes purposes other than providing for an amendment to the Constitution of the United States reading substantially as that contained in this resolution.

BE IT FURTHER RESOLVED, That the Alabama Legislature hereby requests that the legislatures of each of the several states that compose the United States make application to the Congress of the United States to call a Convention for the specific and exclusive purpose of proposing an amendment to the Constitution of the United States reading substantially as that contained in this resolution.

BE IT FURTHER RESOLVED, That certified copies of this resolution be transmitted by the House clerk and the Senate secretary to the President of the Senate of the United States, to the Speaker of the House of Representatives of the United States, to each member of the Alabama delegation to the Congress of the United States (with the request that this resolution be officially entered in the Congressional Record as an application to the Congress of the United State to call a convention for the specific and exclusive purpose of proposing an amendment to the Constitution of the United States reading substantially as that contained in this resolution), and to the presiding officer of each house of each state legislature in the United States.

____________________________

President and Presiding Officer of the Senate

____________________________

Speaker of the House of Representatives

Sample concurrence of a state legislature

Making application to Congress to call a convention for proposing a defense of marriage amendment to the United States Constitution.

—————

BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF ALASKA:

WHEREAS under Article V of the Constitution of the United States, amendments to the Constitution of the United States may be proposed by the Congress whenever two-thirds of both Houses deem it necessary, or on the application of the legislatures of two-thirds of the several states the Congress shall call a convention for the purpose of proposing amendments;

BE IT RESOLVED that the Alaska State Legislature hereby concurs in the following application made by the legislature of the State of Alabama to the Congress of the United States, and makes the same application thereto:

"[Text of the application.]"

FURTHER RESOLVED that the Alaska State Legislature hereby requests that the legislatures of each of the several states that compose the United States make application to the Congress of the United States to call a Convention for the specific and exclusive purpose of proposing an amendment to the Constitution of the United States reading substantially as that contained in the application made by the legislature of the State of Alabama to the Congress of the United States.

COPIES of this resolution shall be sent to the President of the Senate of the United States; the Speaker of the House of Representatives of the United States; each member of the Alaska delegation in Congress (with the request that this resolution be officially entered in the Congressional Record as an application to the Congress of the United State to call a convention for the specific and exclusive purpose of proposing an amendment to the Constitution of the United States reading substantially as that contained in this resolution); and the presiding officers of the legislatures of each of the other 49 states.

Sample Congressional resolution calling an Article V convention

One hundred thirteenth Congress of the United States of America

At the First Session

Begun and held at the City of Washington on Thursday, the third day of January, two thousand and thirteen

Joint Resolution

Calling a convention for the specific and exclusive purpose of proposing an amendment to the Constitution of the United States reserving to the States respectively the power to determine and administrate marriages and other domestic relations.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (on application of the legislatures of two-thirds of the several States), That according to their application,

A convention is called for the specific and exclusive purpose of proposing an amendment to the Constitution of the United States reading substantially as follows:

"Article —

The convention meet for that purpose at the place in which the most numerous branch of the state legislature first making such application is sitting, on the one hundred and twentieth day (Sundays excepted) after application of the legislatures of two-thirds of the several States has been made, and be composed of delegates appointed by the several States, with each State appointing, in such manner as the legislature thereof may direct, at least one delegate (but in no event more than five), provided no Senator or Representative in Congress, or person holding an office of trust or profit under the United States, be appointed a delegate;

All votes in the convention be taken by States, the delegation from each State having one vote, with a quorum to do business consisting of a delegate or delegates from a majority of the States, and a majority of all the States being necessary to an agreement, approval, or adoption of the convention on any question, order, or resolution;

The convention choose its president and other officers, determine the rules of its proceedings, punish delegates for disorderly behavior, with the concurrence of two-thirds of all the States expel a delegate, and keep a journal of its proceedings and publish the same after it adjourns sine die; and

The article approved by the convention be proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

Sample resolution of the convention proposing a constitutional amendment

In Convention Friday, November 1st, 2013.

Present

The States of

Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.

Resolved, That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"Article —

By Order of the Convention

____________________________

President

____________________________

Secretary

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