Forum: Author Hangout

Which gets really annoying when people from outside the state throw millions of dollars into changing the constitution just to see what happens.

And if you get 34 states to agree on something for a Constitutional Convention

I just want to note that the convention process doesn't completely bypass Congress. The states can apply for a convention, but Congress has to actually call the convention.

And if Congress decides not to cooperate, there's not a lot that can be done about it.

Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when 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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Read that again. The state legislatures may apply for a convention, but it's Congress that actually calls the convention.

Yes, the language is technically mandatory, but what enforcement mechanism do you imagine exists if Congress refuses to cooperate.

Yes, but with the clarification that Congress does not get the choice.

I acknowledged that the language is mandatory. However, I suggest that if it happened and Congress refused to cooperate that there is no means of enforcing it.

I would think that SCOTUS would rule that the convention can convene.

Because the constitution explicitly assigns calling the convention to Congress, my opinion is that SCOTUS would rule it non-justicable under the Political Question Doctrine.

https://constitution.findlaw.com/article3/annotation12.html

The political question doctrine limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements, such as standing, ripeness, and mootness, would otherwise be met.1 The Supreme Court has stated that, for purposes of Article III of the Constitution,2 "no justiciable 'controversy' exists when parties seek adjudication of a political question."3 But the term political question is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding. The phrase, which has its origins in Chief Justice Marshall's landmark opinion in Marbury v. Madison,4 is potentially misleading, as federal courts deal with political issues, in the sense of controversial and government-related issues, all the time.5 Rather than referring generally to any such political issue, the term "political question" expresses the principle that some issues are either entrusted solely to another branch of government or are beyond the competence of the judiciary to review. Finding that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the power to rule on the matter.6

but it's not a political question, rather an interpretation of what the Constitution calls for in a given situation.

But the term political question is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding.

The term political question as used in the "political question doctrine is a legal term of art. It doesn't mean what you think it means.

Re-read the part I put in bold.

the term "political question" expresses the principle that some issues are either entrusted solely to another branch of government or are beyond the competence of the judiciary to review. Finding that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the power to rule on the matter.

The calling of a convention was solely entrusted to Congress.

There's quite a bit of stuff in the Constitution that SCOTUS and the rest of the federal courts will not enforce.

There's are quorum requirements written into article I for both the House and the Senate. But no, you can't challenge the validity of a law on the basis that it was passed without the House and/or the Senate having quorum.

To my understanding, the courts are the referees who throw flag when the rule book is violated.

That's the way it ought to be. In many cases, that's not how it is.

I do believe they can determine whether congress is obligated to do b in the presence of a. That's not political but rather legal.

Again, you are interpreting political in a manner different than the way the federal courts use it when they talk about the political question doctrine.

And I may be wrong on how the courts would come down on a Congressional refusal to call a convention, but I don't think it's likely.

Here's another link about the political question doctrine.
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/politicalquestions.html

Also there are other doctrines by which the Supreme court might avoid reaching the merits of the convention issue.

No. Worse. I'm someone with a Masters Degree in Criminology, which means I've studied ALL aspects of the law, from Constitutional to Common to Civil to Corrections to Law Enforcement to the psychology behind criminal and aberrant behavior. And I still have on my reference shelves several of my law books, including my 5th Edition Black's.

The fun part of our Constitutional Law studies is there are a whole set of nuances that were used by the authors. We spent several weeks discussing them. If I'd continued on to Law School - which several of my classmates did - they spent an entire COURSE on those.

I, for one, think it is not a political question in the way that is used in law. Take a look at Powell v. McCormack, 395 U.S. 486 (1969)
This is a question of a mandatory act that congress must take. Enforcement might be a problem, but the court can grant declaratory relief on the issue and let the chips fall.
More to the point, if it ever reached that stage, there wouldn't be a country left to worry about - it would either break up peacefully or devolve into civil war.

I, for one, think it is not a political question in the way that is used in law. Take a look at Powell v. McCormack, 395 U.S. 486 (1969)

And the quorum requirements for the House and Senate in Article 1 are just as mandatory as the Article V statement on congress calling a convention. But the federal courts will not enforce the quorum requirements.

https://en.wikipedia.org/wiki/United_States_v._Ballin

United States v. Ballin, 144 U.S. 1 (1892), is a decision issued on February 29, 1892 by the United States Supreme Court, discussing the constitutional definition of "a quorum to do business" in Congress.[1] Justice David Brewer delivered the opinion of the unanimous Court, analyzing the constitutional limitations on the United States Senate and House of Representatives when determining their rules of proceedings. In particular, the Court held that it fell within the powers of the House and Senate to establish their own rules for verifying whether a majority of their members is present, as required for a quorum under Article I of the Constitution.

. 1 (1892), is a decision issued on February 29, 1892 by the United States Supreme Court, discussing the constitutional definition of "a quorum to do business" in Congress.[1] Justice David Brewer delivered the opinion of the unanimous Court, analyzing the constitutional limitations on the United States Senate and House of Representatives when determining their rules of proceedings. In particular, the Court held that it fell within the powers of the House and Senate to establish their own rules for verifying whether a majority of their members is pr

And that has nothing to do with this issue.

The issue was whether the House can use its own method of calculating a quorum. Since no particular mether is set forth in the Constitution, it can:

The Constitution provides that "a majority of each [house] shall constitute a quorum to do business." In other words, when a majority are present the house in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single

Page 144 U. S. 6

member or fraction of the majority present. All that the Constitution requires is the presence of a majority, and when that majority are present, the power of the house arises.

But how shall the presence of a majority be determined? The Constitution has prescribed no method of making this determination, and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact. It may prescribe answer to roll-call as the only method of determination; or require the passage of members between tellers, and their count, as the sole test; or the count of the Speaker or the clerk, and an announcement from the desk of the names of those who are present. Any one of these methods, it must be conceded, is reasonably certain of ascertaining the fact, and as there is no constitutional method prescribed, and no constitutional inhibition of any of those, and no violation of fundamental rights in any, it follows that the House may adopt either or all, or it may provide for a combination of any two of the methods. That was done by the rule in question, and all that that rule attempts to do is to prescribe a method for ascertaining the presence of a majority, and thus establishing the fact that the House is in a condition to transact business.

ETA to add this language from Powell:

Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a "potentially embarrassing confrontation between coordinate branches" of the Federal Government. But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a "lack of the respect due [a] coordinate [branch] of government," nor does it involve an "initial policy determination of a kind clearly for nonjudicial
Page 395 U. S. 549
discretion." Baker v. Carr, 369 U. S. 186, at 369 U. S. 217. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility. [Footnote 86] See United States v. Brown, 381 U. S. 437, 381 U. S. 462 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S. 613-614 (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U. S. 52, 272 U. S. 293 (1926) (Brandeis, J., dissenting).
Nor are any of the other formulations of a political question "inextricable from the case at bar." Baker v. Carr, supra, at 369 U. S. 217. Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the Constitution -- a determination for which clearly there are "judicially . . . manageable standards." Finally, a judicial resolution of petitioners' claim will not result in "multifarious pronouncements by various departments on one question." For, as we noted in Baker v. Carr, supra, at 369 U. S. 211, it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison, 1 Cranch 137 (1803). Thus, we conclude that petitioners' claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.

Keep in mind as well that if you have 34 states that are on the same page about something at the STATE level, I'd also say the odds are pretty good that they have a majority in both houses at the FEDERAL level.

Keep in mind that US Representatives and US Senator's are directly elected and their home state legislature has precisely zero control over them.

ETA: The kinds of amendments most likely to be pushed through the convention process would be ones that reduce the power of the Federal government. That means that the interests of the state legislature and the state's US congressional delegation would be in opposition, not aligned, even if they are the same party.

ETA: The kinds of amendments most likely to be pushed through the convention process would be ones that reduce the power of the Federal government. That means that the interests of the state legislature and the state's US congressional delegation would be in opposition, not aligned, even if they are the same party.

It is equally likely that the convention could be captured by those who want to either diminish or eliminate state power.
I think that if a convention were called, it would be the end of the country. This is a nation that is not bound together by anything other than the common constitutional heritage. There is no ethnic, language or other historical issue that is found in other nations. Once you toss out the founding documents, there is nothing left.

You didn't capitalize the A in Application, which changes the definition.

Because it's not capitalized in the actual text of the amendment. What are you, some kind of sovereign citizen nut? Because your argument is functionally the equivalent of questioning the jurisdiction of a court because the flag in the courtroom has a fringe on it.

Such a conflict, I believe, SCOTUS would "sit out" as that would be a political question.

That's what I said.