Can a Runaway Article V Convention Be Prevented?
That is the topic of today’s newsletter for the Constitutional Vanguard: November 16, 2016: Preventing a Runaway Article V Convention: Can It Be Done?
Justice Scalia’s views on Article V are also referenced. He has an interesting view on Article V.
On Friday, we discuss what an Article V convention could be used for.
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And let me know if you think the arguments — and Justice Scalia’s! — are convincing!
I drafted all these this past weekend. Not sure if I’ll have the energy to keep up this much discussion every week. But I think the topic is very interesting. Thanks to Milhouse for the idea of discussing different provisions of the Constitution. I think it was a great, great idea.
Patterico (115b1f) — 11/16/2016 @ 10:36 pmThe same was true of the Philadelphia convention.
The exact same argument applied with even greater strength to the Philadelphia convention. After all, all the states would have to ratify whatever came out of it. But that’s not what happened.
The convention knew that there was no chance of all the state legislatures ratifying its proposed “amendment”, so it decided not to bother. Instead it made up its own ratification process, and declared that when its amendment had passed that process it would become the law of the land whether the state legislatures liked it or not.
A new convention could very easily rely on that precedent to do the same thing, declaring that its proposals would be ratified by a national referendum in which everyone present in the USA could vote, regardless of age, citizenship, criminal status, or anything else.
Milhouse (40ca7b) — 11/16/2016 @ 11:07 pmUmmmm … while I only recently became a citizen here, just in time to vote, and to be a poll-worker near where I live, I do believe that the Philadelphia Convention did what they did because they were starting pretty much from scratch … an Article 5 Convention in the 21st century has all the existing precedents of the Amendments passed in the 19th and 20th centuries as its guidance …
Or am I missing something ?
Alastor (2e7f9f) — 11/17/2016 @ 12:25 amThere is no “runaway” convention: “shall call a convention for proposing amendments“.
Period.
If the left hijacks the convention, and proposes an entirely new government, the red/small states simply vote it down. The actual precedent of the original Constitutional Convention was:
1) It went into effect only after 9 of the 13 existing states ratified it (the equivalent would be 35 of the 50 current states, or 34).
2) The remaining states could still have refused to ratify it, and left the union.
The idea that the government could be overthrown by a 50% + 1 national referendum is childish and nonsensical.
A convention of the states is the only way for the people to bypass the elite of both parties in Washington, D.C., and decentralize governmental power in this country. That’s why the Article V amending process was put in the Constitution in the first place; it’s in Madison’s notes.
Evan3457 (f518ce) — 11/17/2016 @ 1:44 amMilhouse (40ca7b) — 11/16/2016 @ 11:07 pm
They tell people that, but more important, the Articles of Confederation required unanimity to amend it: (nobody ever looks at – nobody usually has – the Articles of Confederation)
http://avalon.law.yale.edu/18th_century/artconf.asp
I’m not even sure the Constitutional convention was even in a position to propose amendments. They never went back to the United States in Congress assembled.
They fell back on natural law. That’s the reason why the Constitution starts off by saying:
We the People
http://constitutionus.com/
It would be difficult to do the same thing again because there’s so much current law.
The word “People” in the Preamble is not just rhetric It has legal meaning.
Sammy Finkelman (eb0eea) — 11/17/2016 @ 3:54 amThe wod People< in We the People in fact has exactly the same meaning as it has in he Tenth amendment – and in the Second.
Heller was wrong, at least about an individual right to keep and bear arms deriving from the Second amendment – it might from the Ninth. This should be clear if you look at the predecessor of the Second Amendment in Articles of Confederation:
The reason the Second Amendment says people instead of states is to include Vermont, and places like Tennessee or new unorganized frontier communities.
And another thing:
You can also see that it says no state shall allow people of other states free egress and ingress from any other state. What could they prohibit? Foreigners. We see that any restrictions on immigration was a state power, and the 1787 constitution didn’t change that, giving Congress power only over naturalization.
The “Know Nothing: party of the 1850s, which you have all heard soething about mever proposed any federal restrictions on immmigration – I never heard or read any claim that they did.
Nobody thought that Congress had such a power, beyond what followed from the power to regulate foreign commerce, and possibly national defense, until after the Civil War, and I don’t think even the 1876 Surpreme Court decision Henderson v. Mayor of City of New York 92 U.S. 259 (1875)
https://supreme.justia.com/cases/federal/us/92/259/case.html
…really says so, but all federal laws providing for deportation follow it. It did strike down state laws regarding immigration. But this had to do with regulation and a tax on ships that sailed into port.
There are bits of history that are lost.
Sammy Finkelman (eb0eea) — 11/17/2016 @ 3:56 amMilhouse:
Your specific arguments are addressed here, I think pretty well:
http://www.conventionofstates.com/can_we_trust_the_constitution
Patterico (716a38) — 11/17/2016 @ 6:37 am“A new convention could very easily rely on that precedent to do the same thing, declaring that its proposals would be ratified by a national referendum in which everyone present in the USA could vote, regardless of age, citizenship, criminal status, or anything else.”
But wouldn’t that be in violation of the Article 5 says a convention can do? A convention cannot change the ratification process except by amendment.
Along those lines, I’m not clear about this: “During the 24-hour convention, the states do not just propose the amendment, they also ratify it.”
Can the state representatives at the constitutional convention also ratify any amendment passed at that convention? Does’t it have to be sent back/out to the states to be ratified by either by the state legislatures or state conventions? Here’s what Article 5 says:
“when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof.”
State conventions.
I don’t think the state representatives at the constitutional convention can ALSO ratify any amendment at that convention.
SteveMG (ea62d2) — 11/17/2016 @ 7:29 amSammy Finkleman, as usual you are wrong in great detail.
SPQR (344835) — 11/17/2016 @ 8:00 amIf we are going to go outside the Constitution, you don’t need an an Article V convention.
Not to give someone like Steve Bannon ideas, but President Trump could on his own propose a new constitution that provided for its own method of ratification, and it;s own definition of when it went into effect, it would be the same thing as a runaway Article V convention. But I think it would be much harder for this to work.
I think the one thing you couldn’t do with a totally new constitution is impose it on any state that didn’t consent. That was not such abig problem in 1787-89. The original constitution came at a time when theer were few federal laws, and any states left out would be independent or be still abiding by the Articvles of confederation. As a matter of fact what happened was that Rhode Island was threatened with being treated as a foreign country before it ratified the constitution in 1790.
It might even be the possibility of the union breaking apart was a reason the Bill oof Rights had to beb proposed – they really couldn’t have backed out of it.
Sammy Finkelman (3997eb) — 11/17/2016 @ 8:16 amI agree with Sammy’s read: the 1789 Constitution was not drafted or adopted within the framework of the Articles of Confederation, and the 1789 Constitution is not an amendment of the Articles of Confederation.
It’s a complete replacement, root and branch. The people alive in that day abandoned one and started living under another–as they had just done with their colonial governments under a monarchy.
The 1789 Constitution is just as “illegal”, from the perspective of the Confederation, as the Confederation was from the perspective of the Crown.
And this had happened before with the Commonwealth government. They never got King Charles to authorize it by Act of Parliament; they just scrapped that government and started a new one. More than once, in fact, between the beheading of Charles I and the Restoration.
The natural rights exercised in each of these cases can never really be coded into law. The Founders knew perfectly well that they had the right to rebel against a tyrannical government, but notice that they did not write the right of rebellion into the Articles or the 1789 Constitution; they’d have found such a thing to be a contradiction in terms.
Gabriel Hanna (64d4e1) — 11/17/2016 @ 9:42 amWe have had a runaway Constitutional Convention since 1937. It’s called the Supreme Court Of The United States.
Why should we not have a “runaway” Article V Convention? The Constitution has been tinkered with so much by nine old lawyers that it has little resemblance to what the Founders established in 1789. Let’s chuck the whole patchwork, chewing-gum-and-bailing-wire, tattered Frankenstein out and draft a new one from scratch to reflect today’s America.
nk (dbc370) — 11/17/2016 @ 9:44 am@nk:Let’s chuck the whole patchwork, chewing-gum-and-bailing-wire, tattered Frankenstein out and draft a new one from scratch to reflect today’s America.
I think the farther it is from what we are living under now, the harder it is to get it adopted.
Gabriel Hanna (64d4e1) — 11/17/2016 @ 9:57 amAlastor:
a new convention would have no more guidance than that one did. There have been no conventions in between. Correction: a new convention would have more guidance than that one did — it would have the example and precedent that that convention set, and the very success of its work could be taken to mean this was a good precedent to follow.
Evan3547:
What makes you think they’d be given the chance?
That was a new procedure that the convention made up. That sets the precedent for a new convention to make up a new procedure.
Now you’re being silly. Remaining outside the US was not an option. They’d be crushed by the first invader. The articles of confederation had assured all states the security of an alliance that could not abandon them without their consent. The new convention abrogated that commitment.
That’s what people said when they sent the delegates to Philadelphia. The idea that the government could be overthrown by conventions of the people in nine states, without the state legislatures having a say in the matter, was “childish and nonsensical”. But it happened. It’s much easier to justify a revolution by an actual majority of the population.
Sammy:
Yes, it means the people of the states, as opposed to the state legislatures.
Patterico:
I don’t think so, but I’ll put that off to later.
SteveMG:
That’s precisely the point of a runaway convention. The original convention’s proposal was in violation of the amendment procedure in the articles of confederation. But they did it anyway. They bypassed the existing amendment procedure and created a new reality. This was essentially a revolution. They simply trashed the old USA and created a new one, and the states had no option but to go along with it or be swept aside. Any new convention would have that precedent on its side when it decided to do the same thing.
No, they can’t, at least if they don’t run away. The proposal is that 38 state legislatures would be in session, waiting for the convention to propose the already-agreed-upon amendments. As soon as the proposal has passed the convention, all 38 legislatures ratify them, boom, done, and the convention wraps up and goes home.
Sammy again:
This is true, but as you say it would be more difficult to get away with, because there’s no precedent. A runaway convention could point to the Philadelphia precedent.
Gabriel:
Yes, exactly. That is the point of “we the people of the united states”. It’s saying we are doing this on our own authority, not that of the state legislatures. It was essentially a revolution, the people of the states imposing on their states a new reality.
nk:
This is a good point. But a runaway convention could be the same on steroids. The supreme court is constrained by having to at least pretend to adhere to the existing constitution. A convention could just throw it out, the way the last one did to the articles.
Milhouse (40ca7b) — 11/17/2016 @ 11:08 amThe article Patterico links to says the Philadelphia convention was not a runaway, because by calling the ratifying conventions the state legislatures were consenting to the new procedure for amending the articles. I don’t think that’s valid, for two reasons, one formal and one substantial.
Formally, an actual amendment to the articles’ amendment procedure would have had to be passed, and it never was. Substantive “consent” can’t substitute for that, any more than it can now.
And if we go past the formal to look at substance, we must recognise that the states had no choice. Their “consent” was not freely given, and was therefore invalid. They were presented with a fait accompli, and they could either go along with it and preserve their positions, or resist and be swept aside. The new USA was going to happen, at gunpoint if necessary, but they could avoid that by making it not necessary. Think of Parliament in 1688, retroactively “inviting” William of Orange to invade England and take the throne, after he’d already done it and was ready to arrest any member who voted against the resolution. Or think of the Russian Duma that met for one day in 1918, with the leaders of the only liberal party already in prison, and armed sailors in the galleries to intimidate the opposition.
Milhouse (40ca7b) — 11/17/2016 @ 11:31 amThis is just pure paranoia. An Article V convention has no power to do anything except propose amendments which must later be ratified by the states. Until the state legislatures ratify those amendments nothing an Article V convention does carries any weight whatsoever.
You might as well worry that instead of proposing amendments they’ll keep holding Satanic black masses and throwing virgins into volcanoes until they bring on the end of the world by unleashing the forces of Hell.
Steve57 (0b1dac) — 11/17/2016 @ 2:42 pmGazer worshipers are among the most discrete cohort, Steve.
narciso (d1f714) — 11/17/2016 @ 2:46 pmThat’s GOZAR
Steven Malynn (d29fc3) — 11/17/2016 @ 2:56 pmSigh. Once again, that’s what they said about the last convention too. It ignored its limitations, deliberately threw out the existing legal amendment procedure because it knew its work would never be ratified that way, and instead invented a brand new procedure to ratify its work. That is a precedent any new convention could easily cite to do the same.
Milhouse (40ca7b) — 11/17/2016 @ 3:04 pmYou’re comparing apples to Orangutans, Milhouse. The only thing an Article V convention of the states has in common with the “last one,” the Philadephia convention, is the word “convention.”
So, again, it makes about as much sense to worry that a bunch of out-of-control GAO employees at their annual convention in Las Vegas will crowd into their hotel hot tubs with a bunch of hookers, and BOOM! America wakes up the next morning and the Second Amendment is gone.
Because the GAO had a run-away convention.
Actually, when hasn’t the GAO had a run-away convention?
Seriously, get a grip. Article V hadn’t been written and no, that is not “a precedent any new convention could easily cite to do the same”
Steve57 (0b1dac) — 11/17/2016 @ 4:22 pmautocorrect, dark Sumerian magic, didn’t allow for gozar, seriously what is it for,
https://twitter.com/GuardianUS/status/799337155789254656
narciso (d1f714) — 11/17/2016 @ 4:24 pmMilhouse (40ca7b) — 11/17/2016 @ 3:04 pm
But who says you even need a convention for that, let alone an Article V one?
Sammy Finkelman (643dcd) — 11/17/2016 @ 4:43 pmyou think any institution is immune from pressure,
http://www.weaselzippers.us/308142-anti-trump-protesters-release-personal-info-of-electoral-college-members/
narciso (d1f714) — 11/17/2016 @ 4:47 pm@Milhouse: Where I don’t agree with you is here:
invented a brand new procedure to ratify its work.
The only reason that worked is because people decided to go along with it.
Suppose an article V convention got hijacked by some progressive group, it makes Hillary Clinton Queen and Tyrant and it is “ratified” if Hillary agrees, which she does. Well, they can say “ratified” until they’re blue in the face but it wouldn’t have any effect unless a supermajority of the country was willing to play along.
Gabriel Hanna (4f5ff1) — 11/17/2016 @ 5:23 pmAnd another thing, some states are big enough and lefty enough that you simply couldn’t bind them. They might not formally secede, but if they just decide to ignore it there would not be much to do.
For example, let’s say California. California in its own right is a pretty sizable nation, and especially if it takes the Left Coast with it, the remaining states would find it very expensive and difficult to force them to go along.
Gabriel Hanna (4f5ff1) — 11/17/2016 @ 5:27 pmSame argument would apply to Texas and anything else it could detach.
Gabriel Hanna (4f5ff1) — 11/17/2016 @ 5:28 pmIn what way are they different?
Of course Article 5 of the new constitution hadn’t been written. But article 13 of the old one had been, and the convention ignored it. How is that not a precedent for a new convention doing the same thing by ignoring Article 5?
Milhouse (40ca7b) — 11/17/2016 @ 8:06 pmSerious, non-sarcastic question: do you consider the 14th Amendment valid?
The late Forrest McDonald used an argument very similar to the one you just made to argue that it is not.
Patterico (115b1f) — 11/17/2016 @ 8:16 pmOf course that method wouldn’t work, which is why I didn’t suggest it or anything like it. Your point, which I agree with, is why I suggested they would use the most unacceptable-to-us method that I think would work — a national referendum. After all, if their proposed new constitution passes a referendum then the by definition people did go along with it. Hey, you can’t argue with democracy.
And since they’d be setting the parameters for this referendum, they would let anyone who is in the country vote, without regard to citizenship, legal status, or age. After all, citizenship and minimum voting ages are merely artifacts of the old constitution, which is now being replaced.
This seems to me directly analogous to what the Philadelphia convention did, when it decided its work would be ratified not by the state legislatures, from which it was taking away power, but directly by the people of any nine states, and when it justified that by speaking in the name of “we the people of the united states”, rather than “we the united states”.
Milhouse (40ca7b) — 11/17/2016 @ 8:17 pmWhat I’m suggesting is that the convention would produce a new constitution that the lefty states would love, and wouldn’t want to ignore. As for Texas seceding, they’d probably love to see it go, but if they didn’t they might try the sorts of things Lincoln did, like arresting legislators, or arming federal bases and daring the Texans to fire on them.
Milhouse (40ca7b) — 11/17/2016 @ 8:22 pmI don’t know whether it’s legally valid, but I do know that it was not freely consented to. I don’t think that can be disputed. The only question is whether it matters. But the point of the article you linked to is that by calling the conventions the states consented to the new amendment procedure, which, it claims, is substantively the same as having formally ratified it. That they did it at gunpoint demolishes this claim.
Milhouse (40ca7b) — 11/17/2016 @ 8:25 pm“At gunpoint” is dramatic. They could choose to be part of the new Union or be on their own.
The article makes another point that I agree with: that the states had the residual power to call the convention. I know your beef is with the procedure for ratification, but stay with me.
I am one of those who believes that states have the ability to secede. What prevented them from doing so under the Articles of Confederation? Nothing — in fact, the case was clearer then than it is under the Constitution. And, having seceded, they could have formed a new compact.
And ultimately, that’s what they did.
Patterico (115b1f) — 11/17/2016 @ 8:30 pm@Milhouse: After all, if their proposed new constitution passes a referendum then the by definition people did go along with it. Hey, you can’t argue with democracy.
Except enough people would object to this standard that they could not make it stick. In some places they would go by it and in some they wouldn’t. That might break up the Union but it could not impose the new constitution on polities that refuse to go along, provided they be big enough, collectively.
Which is my point. A de fact super majority has to be there or it won’t work. They can SAY ratified, but it won’t be.
Now for the 1789 Constitution the nine-state requirement was there to have a critical mass that would produce a functioning nation. If New York and Virgina had stayed out, it would have gone nowhere, but they were in, and once 7 others were in they just waited for the ones who stayed out to get in.
In other words, a super majority big enough to make it stick.
Gabriel Hanna (fd688e) — 11/17/2016 @ 8:45 pm@Patterico, Milhouse: I think you both have the 14th a bit wrong.
The Federal government suspended civil government in the Southern states in 1867, two years after the war ended, and placed them under martial law and Federal occupation. The Southern states were not allowed civil governments or to seat their Senators and Congressmen until they’d ratified the amendments and drafted new state Constitutions. They certainly weren’t given the option to “be on their own” instead. It was very much at gunpoint.
Gabriel Hanna (fd688e) — 11/17/2016 @ 8:54 pmWhich means they wouldn’t last long. See how long Vermont lasted before it was forced to join the USA.
The articles of confederation say it will be a perpetual union. States in it had the right to rely on that guarantee, that they’d be safe and protected and would not have to consent to any change in the articles that they didn’t like. Along comes the new deal, and they have to get on board or be left in the cold.
But I think you’re missing my point, which is not that this was illegitimate, but that the violation of Article 13 is exactly analogous to a future convention violating Article 5, and the fact that that convention felt free to do so sets a precedent for a future convention doing the same.
Milhouse (40ca7b) — 11/17/2016 @ 8:54 pmGabriel, Patterico wasn’t referring to the 14th amendment but to the current constitution. States that didn’t want to join were in principle free to be on their own, except not really, as the Vermonters quickly learned.
Milhouse (40ca7b) — 11/17/2016 @ 8:56 pm@Milhouse: The state compacts that give their electoral votes to the winner of the popular vote all contain a clause specifying the number of states that must have similar legislation before it takes effect. This is the same idea. If enough states sign on to these laws, then there is a supermajority in effect that will have changed how the Constitution works. But none of them will be the first to do it, because it wouldn’t make sense.
Article V conventions would handled similarly.
Gabriel Hanna (fd688e) — 11/17/2016 @ 8:56 pm@Milhouse:States that didn’t want to join were in principle free to be on their own, except not really, as the Vermonters quickly learned.
They could have toughed it out. Plenty of smaller nations in the world than they.
Gabriel Hanna (fd688e) — 11/17/2016 @ 8:57 pm@Milhouse: As to the legality of the 1789 Constitution, it is legal because we today agree that it is. Not because our ancestors have any power to bind us to it. They don’t, because they are dead. We can make a new one tomorrow without bothering with Article V, if enough of us are on the same page.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:00 pmGabriel, that’s all very well while the states retain control. But if a convention were to hold a national referendum, and pass a new constitution, the states would no longer have a say in the matter. In fact one thing I think a lefty constitution would be likely to do is abolish the states altogether, or rather abolish them as sovereigns and reconstitute them as administrative units of the nation, like the counties of a state are now.
Milhouse (40ca7b) — 11/17/2016 @ 9:02 pmGabriel, I’m not arguing about the constitution’s legality, but about the enforceability of any limits placed on a convention. I say they would be no more enforceable than the ones placed on the last one. The convention would be free to do whatever it liked, and to cite the Philadelphia example as precedent.
Milhouse (40ca7b) — 11/17/2016 @ 9:04 pmNone of which could preserve their independence without powerful allies. If they hadn’t joined the USA voluntarily, it was only a question of who would invade them first, the USA or Canada.
Milhouse (40ca7b) — 11/17/2016 @ 9:07 pm@Milhouse: the states would no longer have a say in the matter.
But they would. The people who live in those states would have to be willing to go along. Those states control things through the tacit consent of the people who live there. As long as the states are considered authoritative by their people then they will be.
We have seen, in my lifetime, power evaporate overnight and officials shouting orders into a void that no one obeys. We have certainly seen it historically in our own culture.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:08 pmRemember France had just walked over all the independent statelets of the Rhineland.
Milhouse (40ca7b) — 11/17/2016 @ 9:08 pmOr did that happen later? Not long later, though. That was what reality was like for small states at the time. Or now, for that matter: who remembers Sikkim?
Milhouse (40ca7b) — 11/17/2016 @ 9:09 pmI think it’s absurd to say that fifty people sign a piece of paper, there’s one vote, and all of a sudden, against our will, we’re under a totally different government. If that were to happen, it would only be because a supermajority already wanted it.
It’s like how the first states to ban smoking in public are the ones with the fewest smokers.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:10 pmA national majority for the new constitution would certainly include a significant minority in the territory of each state. And the new constitution would not recognise the states’ boundaries, so it would be a majority in the whole country against a minority in the whole country. Submit or resort to arms.
Milhouse (40ca7b) — 11/17/2016 @ 9:11 pm@Milhouse:That was what reality was like for small states at the time.
How did Thailand, Andorra, Switzerland, Luxembourg, and Leichtenstein do it? Not to mention San Marino.
New York might have annexed Vermont if the rest of the US had allowed it. Canada in no position to, there was hardly anyone there.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:12 pm@Milhouse:Submit or resort to arms.
Exactly! Who is going to command the arms in that instance? Not this new fake government.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:12 pmWhy didn’t Robert E. Lee just arrest Jefferson Davis and throw him in the brig? Civil War over.
Because the Army didn’t stay with the national government, that’s why.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:13 pmOne vote of the whole country, not fifty people. But that “whole country” would include many people who can’t vote now. And they’d have the legitimacy that a democratic decision brings. You could expect other countries to offer support to the majority in putting down the racist minority’s revolt.
Milhouse (40ca7b) — 11/17/2016 @ 9:14 pmWith the veneer of a democratic plebiscite the army, or at least a good chunk of it, might well line up with the new regime. And lefties have always been good at violence.
Milhouse (40ca7b) — 11/17/2016 @ 9:16 pm@Milhouse: You could expect other countries to offer support to the majority in putting down the racist minority’s revolt.
This is just getting silly. There is no nation with a big military that can project power that far. Russia has one aircraft carrier. The US has something like the top 5 or 10 militaries combined…
And there’s be no “revolt” because the fake government would never get off the ground without a huge majority in its favor.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:17 pmNothing to revolt against. It’s like saying Congress was in “revolt” against Norton I, Emperor of the United States.
Paper doesn’t do anything. Government is not words and laws. It’s the sum total of the actions of millions of people who agree mostly on what it is. If they don’t agree there’s no government, regardless of what the pieces of paper say.
One day Ceaucescu was in absolute command of a terrified populace, a week later they hanged him. One day James II was an absolute monarch, the next day he was trying to sneak on to a boat for France.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:22 pmAndorra is not independent. Switzerland is armed to the teeth and even that wasn’t enough to save them from Napoleon. Luxembourg was not independent until 1839. Liechtenstein was not really independent until after WW1. San Marino’s independence is basically a gift from Garibaldi, that Italy continues to honor out of its good will.
Milhouse (40ca7b) — 11/17/2016 @ 9:28 pmAgain, that’s why I’m talking about a new government with the support of a majority of the population. Not a supermajority, but a democratic majority nonetheless. The whole world would recognise the resulting national government as legitimate, and the resistance as not.
Milhouse (40ca7b) — 11/17/2016 @ 9:29 pmThe resistance would be seen precisely as Ceaucescu or Marcos.
Milhouse (40ca7b) — 11/17/2016 @ 9:30 pm@Milhouse: If progressives could really command that kind of power what stops them from doing it now? If they knew who Ceaucescu or Marcos were, they would certainly claim Trump is worse. They’re already claiming the election is illegitimate. There already was a national vote that potentially proves them right.
If they can do this thing, they don’t need an Article V convention to do it. If they can’t do this thing, an Article V convention doesn’t help them.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:34 pmArticle V is only going to work if enough people are invested in wanting it to work and don’t want something very different from what we have now, and so I find the runaway scenarios extremely unlikely.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:35 pmIn fact a political opponent of Trump still is Commander-in-Chief of the armed forces. What stops him from arresting Trump, directing the electors to write in Hillary, and the world from applauding it?
The same thing that stops a runaway Article V convention.
Gabriel Hanna (fd688e) — 11/17/2016 @ 9:37 pmThe difference is that there was an election, and by that election’s rules Trump won. If a new election were held, with different rules, that Clinton won, then things would be different. Right now there’s no basis on which 0bama can call a new election; but a runaway convention could do just that, citing the 1788 precedent.
Milhouse (40ca7b) — 11/17/2016 @ 9:40 pmI do think that the 24-hour plan may be enough to prevent a convention from running away. In fact why give it 24 hours? Have it convene in public, with 76 legislative houses (75 if NE is one of the states involved) watching live. That’s something that was impossible in 1787. Open, pass the amendments, and close. No debate, it’s all been arranged in advance. Instantly all 38 states ratify, and boom, we have amendments.
Milhouse (40ca7b) — 11/17/2016 @ 10:40 pmAnd here is where you depart the orbit of universe sanity. As if a convention provided for by the Constitution can act unconstitutionally and we’re all going to go,”Okie dokie.” This Article V convention of the states has arrogated to itself new powers.
Guess we all have to go along with it.
What are you smoking? I want some.
Steve57 (0b1dac) — 11/18/2016 @ 11:04 pmEnough people went along with it last time to make it stick. Why do you think this time would be different? You keep ignoring the fact that the last convention was constrained exactly as this one would be, and yet it ran away, and it got away with it.
However, there is a difference that can save us, as I mentioned in my last comment. If Skype had existed in 1787, and the state legislatures who sent the delegates had insisted on watching the whole thing, and recalled their delegations the moment they went off script, they could have stopped it.
Milhouse (40ca7b) — 11/20/2016 @ 8:14 amJust so everyone is clear, I am not saying that the constitution the Philadelphia convention produced was bad. Just the opposite. What I’m saying is that a convention is a dice roll, and you have no way of knowing what you will get. The decision whether to reroll the dice depends on what you got the first time. If you got a bad roll, then by all means roll again. But we got a good roll, which is why I’m reluctant to roll again in the hope of bettering it, because we could so easily make it worse instead.
But the pre-scripted convention, live-streamed to deter it from running away, and with a short enough script that the delegates are unlikely to have time to develop their own ideas, might work.
Milhouse (40ca7b) — 11/20/2016 @ 8:19 am@Milhouse: You’re confusing cause and effect.
Yes, the 1789 Constitution was a dice roll,in that no one knew they would come up with what they did. But the adoption of the Constitution was not a dice roll. The States would not have adopted it if a supermajority had thought it was bad. The reason they adopted it is because most people thought it was better. The process took nearly four years from beginning to end and there was public discussion throughout. That’s what The Federalist was. From September 1787, when the Constitutional convention was adjourned, to the ratification of the ninth state in June 1788 was about 9 months, and even then they continued to work on it, with states requesting changes at time of ratification.
An out-of-control Artice V will just be disregarded. It will have no legal force unless a large supermajority of the country thinks it ought to.
Gabriel Hanna (905cbf) — 11/20/2016 @ 9:34 amI guess it’s not cause and effect you are confusing, Milhouse, as conditional probability. Given that the 1789 Constitution was adopted, it had to have been good in the eyes of a supermajority or it simply would not have been adopted. The chances of the 1789 Constitution producing something worse than the Articles of Confederation were greater than zero, but if that had happened the states would not have ratified it, and the chances that it would have gone into effect would have been zero.
They could have done any number of things had they not liked it, sent them back to try again, maybe with new delegates, or found another way to work it out. They were never bound to ratify unless most people thought it was going to be better.
And the whole thing was predicated on widespread dissatisfaction with the current system.
Gabriel Hanna (905cbf) — 11/20/2016 @ 9:38 amThe adoption was through the mechanism the convention invented. Had they used the then-constitutional method, it would not have passed. That’s why they invented a new method, that would give their creation a better chance of passing. And that’s why a new convention could do the same thing, coming up with a new adoption method to pass something that the current method would not. Not a ridiculous method that nobody would think legitimate, such as the one you facetiously suggested, but one that has enough respectability that a constitution it passed would be hard to argue against. If a majority of the population voted for their new monstrosity, how could one argue it was wrong, just because it had not jumped the archaic and undemocratic barrier of Article 5? That would be exactly like someone in the 1790s resisting the just-passed constitution on the grounds that it had not jumped the archaic and undemocratic barrier of Article 13.
Milhouse (40ca7b) — 11/20/2016 @ 9:43 amWhich we have now too, on the left even more than on the right.
Milhouse (40ca7b) — 11/20/2016 @ 9:44 am@Milhouse:And that’s why a new convention could do the same thing, coming up with a new adoption method to pass something that the current method would not. Not a ridiculous method that nobody would think legitimate, such as the one you facetiously suggested, but one that has enough respectability that a constitution it passed would be hard to argue against. .
Whatever they came up with, it would have to be acceptable to a supermajority and therefore not a runaway convention.
Just like 1789. They didn’t just count heads and say, oh, 50%+1, this is the new Constitution. They came up with something that required at least the tacit assent of a supermajority.
Gabriel Hanna (905cbf) — 11/20/2016 @ 6:20 pm