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Senator Feingold Has Constitutional Opportunity

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Like others promoting constitutional amendments, Senator Russ Feingold, Democrat, Wisconsin, apparently is unaware of the refusal by Congress to obey Article V of the Constitution. He has a fine idea: every senator must actually be elected rather than appointed to that position. In 1913 the 17th amendment created the potential for governors to make appointments to fill Senate seats until the next regular scheduled general election and 38 states allow this; there have been 185 such appointments. Feingold is right to condemn “decisions being made solely by the powerful, without the consent, or even the input, of the people.”

Congress is unlikely to propose the desired new amendment, however. All of the existing constitutional amendments were proposed by Congress. But many worthwhile ones have never been proposed and sent to the states for ratification. There is an alternative. Article V provides a convention route for proposing amendments. Interest in amendments has triggered over 700 applications from state legislatures to Congress for a convention of state delegates that could propose constitutional amendments. However an amendment is proposed, it still must be ratified by three fourths of the states and the constitutional limitations on Congress limiting it to propose amendments to our present constitution equally apply to a convention.

Senator Feingold and his amendment supporters from both parties, including Senators John McCain and Richard J. Durbin, Representatives James Sensenbrenner and David Dreier, and House Judiciary Committee Chairman John Conyers, Jr., know how difficult it has been for Congress to have the courage to propose amendments that could provide needed government reforms despite wide public support, such as a balanced budget amendment and one replacing the Electoral College with direct voting for the president.

Sadly, few Americans know that Congress has stubbornly refused to obey Article V and honor the fact that the one and only stated requirement to have a convention, namely that two-thirds of state legislatures apply for one, has long been satisfied by a huge margin with over 700 applications from all 50 states. It sounds a little nutty to say that Congress has been able for a very long time to get away with violating the Constitution and their oath of office to obey it. But that is exactly what has happened. The Supreme Court even turned down an opportunity to make Congress obey Article V. As a matter of public record, the government in that lawsuit did not dispute the fact that the single constitutional requirement was met. Nor did it dispute that members of Congress had violated their oath of office.

One reason why Congress has gotten away with this is that it has never established a system to collect and make publicly available all state applications. Keeping these state applications out of sight has made it easy for politicians, the media, watchdog groups, academics and the public to remain ignorant of this congressional disgrace. Even more ridiculous is that states keep submitting applications for a convention as if more are needed, oblivious to the fact that they have just kept piling up and been ignored by Congress. Even now there are efforts in several states to get a convention because of interest in some other types of constitutional amendments. Rather than expend energy on particular amendments, what is critically needed is a focus on getting Congress to obey the Constitution and immediately call the first convention. Like many Supreme Court decisions, the inaction by Congress is an illegal form of changing the Constitution.

State applications have been buried in the voluminous Congressional Record over the history of our country. Finally, a private national, nonpartisan group spent its own money to find, collect and copy these hundreds of state applications for a convention and make them readily available. People can access them at www.foavc.org the site of Friends of the Article V Convention that has the single mission of making Congress obey the Constitution and call the first convention; it does not advocate for any specific amendments.

So, please Senator Feingold, as a true reformer and chair of the Senate's Constitution Subcommittee of the Judiciary Committee, take the opportunity to address the disappointing and nasty illegal behavior of Congress. Even more disturbing than people becoming senators without being elected to that high office, something impermissible for House Representatives, is this violation of Article V. Please shift your attention to getting Congress to call the first Article V convention by introducing a joint resolution demanding that action. This would require only a simple majority vote in both houses, in contrast to the two-thirds majority needed for a joint resolution proposing an amendment.

Also, implore President Obama, a former constitutional law professor, to publicly support making Congress, finally, obey the Constitution. This is surely a case of better late than never. For more than empty lip service to the principle that no one is above the law Congress must obey the supreme law of the land and honor the Article V provision for the convention option. This is necessary for credible, law-abiding American democracy. Justice demands this. Without fixing this problem there is even more reason for citizens to have little confidence in Congress and government as a whole.

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About Joel S. Hirschhorn

Formerly full professor Univ. of Wisconsin, Madison, and senior official Congressional Office of Technology Assessment and National Governors Association. Author of four nonfiction books and hundreds of articles.
  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Good article, and a concept I would like to pursue. To that end, and to make it a tad easier, can you provide a cite, or a link, to the case in which The Supreme Court even turned down an opportunity to make Congress obey Article V? I don’t doubt for a moment that the Supreme Court did that, but would like to read the opinion. The Court is not overly inclined to review Constitutional issues, and the rationale for the deciding not to do so here would be interesting.

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    My goodness, Joel. You’re coming to the voice of reason. Good for you.

  • Mark Eden

    Another clear presentation Joel. Thanks. Seems that the major argument against your position is indirectly expressed by Bayes’ man David J. Ziemba when he stated: “…if there is an authentic national movement underlying a petitioning by two-thirds of the States, there would be a response by Congress.” He implies that a series of independent petitions doesn’t meet the requirements of Article V.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You’ve been absent thus far. Any reason?
    I do admit, I miss your cool reasoning – however much we disagree.

  • Mark Eden

    Hi Rog. Just haven’t felt motivated to add my two cents. The whole leftie-rightie/conservative-liberal/democrat-republican argument is utterly uninspiring.

    BTW, I’ve been re-reading Carl Menger and the early Austrians. You might take a look — his subjectivist history of unintended consequences reminds me your notions.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Why don’t you give me a link? I knew mind like yours couldn’t stay idle. I should do likewise except that – in my illusory moments – I have a stupid impression I can make a difference.

    Pure folly.

  • http://handyfilm.blogspot.com handyguy

    I say, be careful what you wish for.

    A constitutional convention could provide a cornucopia of unintended consequences.

    The hangovers could be fierce.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You shouldn’t object, handy, if you think we’re in dire straights. Who knows what might work?

  • Mark Eden

    (I’m reading a hard copy of his Problems of Economics and Sociology (his more interesting work) which I couldn’t find online. Here’s a pdf of his Principles of Economics)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Great! We’ll talk later.

  • http://handyfilm.blogspot.com handyguy

    Whatever dire straits we may be in have little or nothing to do with flaws in the constitution.

    Whatcha wanna bet a significant number of those 700 requests were motivated by issues like gay marriage? No thank you to those constitutional amendments!!

    A convention implies that we want or need to make multiple changes. I am not even close to convinced about that – it’s not something to be frivolous about. And from the evidence of many of Mr. Hirschhorn’s earlier pieces, I’m not sure I would welcome his own suggestions for amendments.

  • http://www.republicofdave.com Dave Nalle

    This is just Joel beating the same old drum, supported by familiar half-truths.

    The 700 applications he mentions were connected to specific issues, many of which ended up being acted on by congress without the need for a convention, and none of which had enough states signed on to require a convention. You can’t add up 700 applications on hundreds of different issues over 200 years and pretend they represent a desire for a general convention not based around any of the specific issues those applications were trying to promote.

    The truth is that there is NOT a widespread desire for a convention or a new constitution, and certainly not if it involved some of the really ideologically scary people who would likely take part.

    Dave

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Dave,

    Am I missing something here? I think he focuses on Article V and the 17th Amendment. So why are you saying he’s all over the map? I don’t have as good an understanding of the constitutional issues, so perhaps you could explain.

    Roger

  • Joel S. Hirschhorn

    Dan Miller: the Walker case materials are on the FOAVC website wwww.foavc.org.

    Anyone who spends the time actually scanning the 700+ state applications will see that there are no crazy ideas for amendments; remember those applications had to get through state legislatures.

    As to counting all of the applications, this is an old argument; just read what Article V says. There is no basis for NOT counting all the applications, and, moreover, a precedent was already established when Congress counted state ratifications over a very long period and eventually made an amendment official.

  • Bill Walker

    A couple of quick corrections to the comments made.

    1. You can read all the details about the lawsuits at the FAQ section of http://www.foavc.org at FAQ 9.1.

    2. There is not a single application dealing with gay marriage. In fact the only issue even close to this area is applications for a right to life amendment.

    3. The statement insufficient applications exist on any issue to cause a convention call is false. There are at least four issues that do this. You can get details at the website.

    4. In the lawsuit, the government clearly conceded that the convention call required of the Congress was based on a simple numeric count of applying states with no other terms or conditions. Second, the government clearly acknowledged that to refuse to obey the Constitution and advocate the same in a public trial was a violation of the oath of office of all members of Congress. This violation, according to federal law, is a criminal offense. The lawsuit sued all members of Congress individually meaning under the terms of federal law each member of Congress had to decide individually to join the lawsuit and thus violate their oath of office.

    5. The fact that Congress may or may not have “acted on these” does not relieve it of its constitutional duty to call an Article V convention. The Constitution specifies that “on the application…[Congress] shall call a convention for proposing amendments.” Thus the constitutional purpose of all 700 plus applications is not a specific amendment proposal but to cause a convention call. That is what the government conceded when it agreed it was a simple numeric count of applying states with no terms or conditions. Having to have the same amendment proposed by all applying states would be a term or a condition.

    6. As to the concern about a convention, if you check the references on the site you’ll see that there have been nearly a 1000 conventions, most of which have been held in the United States and hundreds around the world all without incident. Indeed right now there are numerous conventions either being held or being discussed in both the states and in the world and I would be not one person reading this can name any unless their own state is one of those involved.

    7. As to the question of authentic applications. Even if those who say the count of states must be based on the same amendment issue were correct, and they are not, Congress is still obligated to call a convention. At least three issues on their own individual counts have reached the required two-thirds application mark set by the Constitution.

    In short, no matter how you cut, dice or slice it, Congress has vetoed the Constitution.

  • http://handyfilm.blogspot.com handyguy

    Roger, the Wikipedia entry on this subject answered many of my own questions. Take a look. It seems the Supreme Court rejected the idea of combining unrelated requests for a convention. And if there were a convention about a single issue, there is definitely disagreement about whether other issues could properly be brought up.

    I think Mr. Hirschhorn and Mr. Walker should not be so coy: Pray tell us what wonderful delights you yourselves would like to bring up at such a Constitutional Carnival, I mean Convention.

    If they’re not weird or scary [ha!] maybe we’ll change our minds.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Thanks.

  • Joel S. Hirschhorn

    Handyguy:

    First Wikipedia articles are not gospel, often just crap that anyone can post; there are many inaccuracies in the article you cite; we will try and correct it.

    Second, as a matter of policy our group FOAVC does not advocate for any particular amendment; our single mission is make Congress obey the Constitution and call the first Article V convention. I always find it remarkable how so-called patriots and lovers of the Constitution somehow rationalize why it is okay for Congress to selectively disobey any part of the Constitution.

    You are simply dead wrong that only applications for a particular amendment are to be counted towards the 2/3 state requirement. You should be extremely concerned about letting the current corrupt, dysfunctional political system continue without any new efforts to enact needed structural reforms through amendments that Congress will never propose.

  • http://handyfilm.blogspot.com handyguy

    I don’t believe that you don’t have particular amendments in mind. You’re just hiding them. Let the sunshine in, baby.

  • http://www.republicofdave.com Dave Nalle

    So why are you saying he’s all over the map?

    I didn’t say he was all over the map, Roger, just that the argument he makes a few comments later is dead wrong.

    The truth is that the 700 applications he is talking about were made for multiple different, specific and unassociated purposes, many of them now obsolete, not for the calling of a general convention. They called for amendments on specific issues, most of which have already been acted on one way or another, and once you eliminate those there are not enough applications on any specific issue to justify a convention.

    This is a fact. Go read the applications if you don’t believe me. Joel can attempt to dismiss it, but no one is going to take the issue seriously because of it.

    Dave

  • http://www.republicofdave.com Dave Nalle

    Handy, read their site and then look for the bits they neglect to mention. For example they quote one bit from US v. Sprague while not providing a link to the actual case, because on the whole it does not support their contentions.

    As for what evil they want to do with a convention, all I know is that Joel is a Truther and that says all we need to know about the soundness of his judgment in general.

    Dave

  • http://www.articlev.org john de herrera

    may the anti-conventionists consider this: there is an inevitable result to institutionalized corruption. you think the federal government is finished with We The People yet? think again.

    if the federal government has opposed this thing time and again all these years, and corruption has become worse, and laws have been deregulated against the interests of the public, then i for one am all for the Article V Convention.

  • http://www.republicofdave.com Dave Nalle

    I don’t see any evidence that the federal government has opposed a constitutional convention any more than anyone else has. Their most typical response to efforts to call one has been to respond very accomodatingly by introducing the amendment in question on their own.

    Dave

  • http://www.americancommonsenseparty.net Bill Vincente

    Article V now Balanced Budget Amendment, Fair Tax amendment, Term Limit Amendment

  • http://repealthe17thamendment.blogspot.com/ Brian

    This article lacked any understanding of the US Constitution, the convention process or the history of the United States.

    The 17th should be repealed, yes, completely, and the rightful authority of the states should be returned. The US Senate was created as a check and balance to protect the states from a dominate federal authority and to represent the states. The House was created to represent the people; two houses, different representation. The scholarship detailing this is overwhelming.

  • Joel S. Hirschhorn

    Brian apparently did not really read this article; otherwise he would have learned that the only way to get rid of the 17th amendment would be through an Article V convention, because surely Congress would never propose such an amendment to restore states’ right to elect senators.

  • http://www.republicofdave.com Dave Nalle

    I don’t see how repealing the 17th Amendment would not be in the interest of sitting Senators and Representatives. It seems like it would actually be easier to repeal it through Congressional action than through a convention. The problem for repeal would be getting popular support for it – which seems very unlikely.

    Dave