Share |

Amend America Together We Can Amend America

Amend America is the national clearinghouse for news and information on efforts to call an Article V convention through an online community of political leaders, legal scholars, and involved citizens who support constitutional reform outside the halls of Congress.

READ MORE...

  • “ … we must realize the Theories of the Wisest Writers …. this could be done only by Conventions of Representatives chosen by the people in the several Colonies, in the most exact proportions.”

    —John Adams (June 2, 1775)

  • “… whenever any Form of Government becomes destructive of these Ends [Life, Liberty, and the Pursuit of Happiness], it is the Right of the People to alter or to abolish it, and to institute new Government ....”

    — Declaration of Independence (July 4, 1776)

  • “Let a Convention then, be tried. If it succeeds in the first instance, it can be repeated as other defects force themselves on the public attention, and as the public mind becomes prepared for further remedies.”

    — James Madison (March 19, 1786)

  • “The plan now to be formed will certainly be defective …. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.”

    — George Mason (June 11, 1787)

  • “Col. Mason thought the [proposed] plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments … depend[s], in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should ever become oppressive, as he verily believed would be the case.”

    — George Mason (September 15, 1787)

  • “Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on like application. ”

    — James Madison (September 15, 1787)

  • “The … best supporters the Constitution … do not contend that it is free from imperfections; but they found them unavoidable … if evil is likely to arise … the remedy must come hereafter; … I think the People … can … decide … on the amendments which are necessary …. I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us.”

    — George Washington (November 10, 1787)

  • “[Article V], moreover, equally enables the general and State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

    — James Madison (January 1788)

  • “The words of … [Article V] are peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body…. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

    — Alexander Hamilton (August 1788)

  • “It will not have escaped you, however, that the question concerning a General Convention, does not depend on the discretion of Congress. If two-thirds of the States make application, Congress cannot refuse to call one ....”

    — James Madison (January 13, 1789)

  • “Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.”

    — Benjamin Franklin (November 13, 1789)

  • “The legislatures of the States have a right … to originate amendments to the Constitution, by a concurrence of two thirds of the whole number, in applications to Congress for the purpose.”

    — James Madison (December 1799)

  • “Lastly, the fifth article provides the mode by which future amendments to the Constitution may be proposed, discussed, and carried into effect … the … second [mode] … secures to the states an influence in case Congress should neglect to recommend such amendments, …. [but it] will probably never be resorted to, unless the federal government should betray symptoms of corruption ….”

    — St. George Tucker (May 1803)

  • “But the Chief Justice [John Marshall] says, ‘there must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter [of the Constitution] is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States….

    — Thomas Jefferson (June 12, 1823)

  • “That in case of an experienced inadequacy of … [the Constitution’s] provisions, an ulterior resort is provided in amendments attainable by an intervention of the States, which may better adapt the Constitution for the purposes of its creation.”

    — James Madison (May 1830)

  • “Should the provisions of the Constitution … be found not to secure the Govt. & rights of the States agst. usurpations & abuses on the part of the U.S., the final resort within the purview of the Constnt. lies in an amendment of the Constn. according to a process applicable by the States.”

    — James Madison (August 28, 1830)

  • While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the [Constitution] itself; …. I will venture to add that to me the convention mode seems preferable ….

    — Abraham Lincoln (March 4, 1861)

  • “The people of the State of New York … do enact as follows: SECTION 1. The Legislature of the State of New York applies to the Congress of the United States of America to call a national constitutional convention to repeal Article XVIII of the Constitution of the United States of America, and no other article of the Constitution….”

    — Franklin D. Roosevelt (1931)

  • “Through their state legislatures and without regard to the federal government, the people can demand and participate in constitutional conventions in which they can, through their own action, adopt such amendments as will reverse any trends they see as fatal to true representative government.”

    — Dwight D. Eisenhower (May 26, 1963)

  • “I will also support the resolution now pending before the legislature calling upon Congress to propose a constitutional amendment to balance the federal budget or to convene a constitutional convention to achieve this goal.”

    — Gov. Edmund (Jerry) Brown, Jr. (January 8, 1979)

  • “Instead of displaying utter confusion and an inability to do anything about the [convention] calls from the states, Congress could simply decide that they constitute a call for a constitutional convention on the broad issue of fiscal responsibility and control at the federal level ….”

    — Antonin Scalia (May 23, 1979)

  • “Those who wring their hands over the prospects of a[n Article V] convention run the risk of exposing their elitism, implying that the average citizen cannot be trusted.”

    — Attorney General Griffin Bell (April 14, 1984)

  • “It has now become obvious that … Congress will not act to impose a limit on its own spending. I therefore believe that further action by the States … in petitioning Congress to call for a constitutional convention for the sole purpose of writing a balanced budget amendment will go far towards convincing Congress ….”

    — Ronald Reagan (March 16, 1987)

  • “This reluctance by Congress has inspired a number of Americans to try [for]… a constitutional convention … [to] propose a balanced budget amendment, and then send it on to the state legislatures for approval…. If the Congress continues to balk … I think the drive for a constitutional convention will pick up steam.”

    — Ronald Reagan (May 23, 1987)

  • “I will again ask Congress to submit a balanced budget amendment to the States. And if the Congress will not act, I’ll have no choice but to take my case directly to the States [through an Article V convention].”

    — Ronald Reagan (July 3, 1987)

  • “If the Congress continues to oppose the wishes of the people by avoiding a vote on our balanced budget amendment, the call for a constitutional convention is only two states away from approval, and, one way or another, the will of the people always prevails.”

    — Ronald Reagan (August 12, 1987)

JOINAmendAmerica

Making Amends

an Article V blog by Andy Hawks

THE FIVE TESTS FOR A CONSTITUTIONAL AMENDMENT

August 15, 2012

Filed under: 1 Comment

THE FIVE TESTS FOR A CONSTITUTIONAL AMENDMENT

Every proposed constitutional amendment should pass five analytical tests:

     1.     The Suitability Test: Is the proposal suitable for inclusion in the Constitution?

This test is not about the substance or merits of a proposed constitutional amendment, but whether it raises the broader concern of James Madison in Federalist No. 49 that frequent constitutional changes would “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest government would not possess the requisite stability.”  For Madison, the amendment process was best reserved for “certain great and extraordinary occasions.”  Determining when a “great and extraordinary occasion” has arisen requires us to ask (1) whether the problem will remain important to future generations rather than of immediate concern to the generation seeking its adoption; (2) whether the proposal seeks to achieve a particular policy or partisan result instead of (i) addressing a systemic or structural problem or (ii) expanding individual political or civil rights; and (3) whether the problem can, as a practical or legal matter, be addressed by statutory, executive, or other (non-constitutional) means.   The paradigm example of a constitutional amendment that failed the suitability test is the 18th Amendment, which sought to impose alcohol prohibition on a nation caught up in the fervor of “progressive” reform.  (Although to be fair, the advocates of alcohol prohibition at least recognized that such prohibition required a constitutional amendment, unlike the drug prohibitionists of today.)

2.     The Policy Test: Is the proposal good policy?

This test is about the proposal’s substance or merits.   The suitability test will eliminate most proposed amendments, but assuming that the problem being addressed is serious enough to quality as a “great and extraordinary occasion”, is the proposal itself the best solution for actually solving (or at least diminishing) the problem?  Answering this question requires us to ask searchingly what result we are trying to achieve and whether this result is consonant with the moral and political values that we want to see prevail.  It is also a matter of judgment as to the costs of success, for we must never forget the law of unintended consequences should we actually achieve the result we are seeking.  Again the 18th Amendment is a cautionary tale.  Attempts to restrict the rights of our fellow citizens are almost always misguided, but when they lead so directly to massive crime and corruption, no benefit from such a proposed amendment can justify its ratification.

     3.     The Enforcement Test: Is the proposal self-executing or otherwise enforceable?

This is the test that is most often overlooked or intentionally ignored.  Some amendments are indeed self-executing, such as the 22nd (presidential term limits), or readily enforceable by the courts, such as the 24th (no poll taxes).  But Members of Congress often propose or co-sponsor amendments for their symbolic value to buttress their political standing or insulate them from political pressure, knowing full well that the amendment cannot or will not be enforced if ever ratified.  Here the paradigm is the so-called Balanced Budget Amendment (BBA) that has been periodically approved by the House of Representatives and which in March 1995 failed by a single vote in the Senate.  For decades I have been waiting for BBA supporters to explain how it would be enforced, but the only responses that they have ever given are (1) “fidelity to the Constitution” (i.e. Members of Congress will only pass balanced budgets because they swear an oath to the Constitution) and (2) super-majority voting to raise the debt ceiling.  Leaving aside the various loopholes in the BBA for war, national security, and 3/5th majorities, fidelity to a constitutional oath is not self-executing.  The more likely scenario is that lawmakers will claim to have honored their oaths by voting against spending which they personally oppose, yet fail to reach an overall consensus on legislation that actually balances the budget.  As for using the debt ceiling to enforce fiscal discipline, we were reminded how vacuous this idea was last summer when Congress raised the debt ceiling for the 75th time since March 1962 (Congressional Research Service Report RL31967, April 5, 2011 https://opencrs.com/document/RL31967/).

     4.     The Drafting Test: Has the proposal been properly drafted to achieve its policy goals?

This is perhaps the trickiest test to apply and meet because it not only has a practical component but an aesthetic one as well.  A constitutional amendment must accomplish the intended goal in language that is as clear, simple, and direct as possible, but without opening the door to judicial reinterpretations that twist the original meaning so as to gut the amendment in whole or in part.  We have still not recovered from the 1873 Slaughterhouse Cases that effectively rewrote the Privileges or Immunities Clause to make it a dead letter in all but a few uncontroversial instances of federal or national citizenship.  Drafters can seek to protect themselves from subsequent “judicial amendments” with detailed provisions, but this can result in wording akin to the prolixity of the tax code.  Even then there is no guarantee that the original meaning will be honored.  The framers of the P&I Clause could never list all of our “privileges or immunities”, any more than the framers of the 9th Amendment could list all of our unenumerated rights.  There is also the problem of language changing or simply being forgotten over time.  This concern can sometimes be addressed by adding specifically defined terms to an amendment, but if a court is determined to achieve a certain result, there is very little that can be done, at least in the short term.  Just ask Chief Justice Roberts what a “tax” (or “direct tax”) is for constitutional purposes.

5.     The Political Test: Is the proposal politically viable?

Lastly, it is important to remember that proposed amendments must achieve deep and widespread political support to run the proposal and ratification gauntlet under Article V of the Constitution.  The proposal must therefore have the potential for political viability, which in turn means that it must eventually gain bipartisan support.  To be sure, many of our greatest constitutional provisions were not seen as politically viable when first proposed.  The Civil War Amendments (13th, 14th, and 15th) required, well, a civil war, and the 19th Amendment required decades of political activism to achieve women’s suffrage.  Still, most of us have limited time and energy, so it is best to focus on proposals that are serious and significant, yet do not favor any political party or which are so ideologically motivated as to ensure failure.  One of my favorite proposals would change Tax Day from April 15 to the first Monday in November, but this should not be the focus of one’s Article V efforts given the enormity of our fiscal problems and the need to make spending restraint by the federal government our first priority.

BLAMING OBAMACARE ON CHIEF JUSTICE JOHN MARSHALL – Part 3

May 21, 2012

Filed under: 1 Comment

Let’s assume that McCulloch had contained the iconic statement that Chief Justice Marshall later explained in his “Friend” essays was what he actually meant:

“Let the power be legitimate, let it be an enumerated power within the scope of the constitution, and all direct means and incidental powers which are appropriate, which are plainly adapted to the execution of that enumerated power, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

How would Obamacare have fared under McCulloch properly construed in this way?

The first question would be whether the Obamacare statute was an exercise of the Commerce Power by what Marshall regarded as “direct” means. The answer here is clearly “no” because the Affordable Care Act is not actually a regulation of interstate commerce, but rather new set of rules governing intrastate sales of health insurance.

Indeed, we have a Balkanized state system of health insurance regulation that precludes interstate sales of health insurance policies. Congress could have enacted a direct regulation of interstate commerce that struck down these intrastate regulations to create a genuine interstate health insurance market, but it chose not to do so. Instead, it sought indirect change of the interstate healthcare market by promoting intrastate sales of health insurance through the “guaranteed issue” and “community rating” provisions. These provisions cannot be direct means of exercising the Commerce Power because they do not implement any regulation of interstate commerce.

This leads to a second question, namely whether the “guaranteed issue” and “community rating” provisions are justified as incidental powers under the Necessary & Proper Clause. Again the answer must be “no” because again they are not supporting or perfecting any regulation that executes the Commerce Power by direct means. Thus, they are not “necessary” in either the restrictive (“indispensable”) or expansive (“convenient”) sense because they are not tethered to any actual exercise of the Commerce Power. The issue of whether they are also “proper” does not even come up.

The only justification for the “guaranteed issue” and “community rating” requirements is that they are rationally related to the permissible goal of expanding health insurance coverage. This would be a legitimate “object” within the scope of the Preamble, but not the type of legitimate “end” that Marshall was talking about in McCulloch because expanding health insurance coverage is not itself the exercise of an enumerated power, only a goal to be achieved through an enumerated power.

To be sure, ever since the New Deal, Congress has been able to regulate intrastate activities that have a substantial effect on interstate commerce, and my revision of Marshall’s iconic statement above would not undermine this doctrine when the intrastate regulation is needed as an incidental power for supporting or perfecting the interstate regulation. Indeed, the Substantial Effects Doctrine can be viewed legitimately as a method of construing the Necessary & Proper Clause to determine if the intrastate regulation is in fact supporting or perfecting the interstate regulation.

But you still need a specific interstate commerce regulation, not just some amorphous goal involving interstate commerce, before asking whether it is necessary and proper to regulate intrastate activity that has a substantial effect on interstate commerce. Congress, for example, could have passed a statute that directly prohibited the interstate sale of health insurance policies that lack “guaranteed issue” and “community rating” provisions. Under United States v. Darby, which proscribed the interstate shipment of lumber manufactured by workers lacking certain minimum wages and maximum hours, Congress would have a plausible precedent for further prohibiting the sale of intrastate health insurance policies lacking “guaranteed issue” and “community rating” provisions.

The issue then would have been whether the prohibition on such intrastate policies was a necessary and proper means for supporting or perfecting the direct prohibition on such interstate policies. If we had an existing interstate market for health insurance policies, then the intrastate prohibition would likely be upheld under Darby as a proper exercise of an incidental power for enforcing the interstate prohibition. The fact that no such interstate market exists, however, would expose the intrastate prohibition as a mere pretext for regulating intrastate activity.

By this analysis the “guaranteed issue” and “community rating” requirements of Obamacare are themselves unconstitutional even without resorting to the individual mandate. The individual mandate is just one more step removed from the Commerce Power in that it is not itself a direct regulation of interstate commerce or an incidental power for executing such a regulation.

At best the individual mandate is a secondary incidental power for perfecting other incidental powers (“guaranteed issue” and “community rating”) that are not themselves means for executing an enumerated power. This is Jefferson’s proverbial “House that Jack Built” – piling necessities upon necessities – made worse by the fact that one of the “necessities” of Obamacare, namely preventing the adverse selection caused by the “guaranteed issue” and “community rating” requirements, was created by the Obamacare statute itself.

Of course, under modern Commerce Clause jurisprudence, one no longer has to show how an incidental power is needed to execute an enumerated power; it is enough if the incidental power regulates an intrastate activity that substantially affects interstate commerce, and the incidental power is rationally related to one of the goals found in the Preamble.

Nonetheless, I would argue that this construction of the Necessary & Proper Clause constitutes a improper judicial amendment of the Constitution (at least as applied in interstate commerce cases), and I think it can be attributed in large measure to the linguistic sleight of hand whereby Marshall’s legitimate “end” is no longer an enumerated power, but any of the Preamble’s “objects.” In any event, this linguistic sleight of hand is what has made Obamacare possible thus far, and we can only hope that the Supreme Court will strike down this House that Jack Built and force Congress to start over.

Copyright © 2012 Anthony W. Hawks. All rights reserved.

Question?