Archive for August 2013

Amendment That Violates the Constitution   3 comments

The 16th Amendment was in direct violation of Article I, Section 9 of the Constitution, which states “No capitation, or other direct Tax, shall be laid unless in Proportion to the Census or Enumeration.” Essentially, this meant that the federal government could collect revenue from the states according to population, but had to leave the method of collection to them. The federal government was therefore limited in the amount of money it could raise by its own authority … keeping it small and not terribly intrusive … usually. Occasionally, there were special taxes implemented to pay for a crisis … the Civil War, for example. These were of short duration and for a specific, time-limited purpose … and they enjoyed broad popular support, often.

The 16th Amendment led to the Internal Revenue code, which is incredibly complex, inefficient and abusive, and frequently used by overzealous bureaucrats and politicians to restrain the liberty of American citizens. It was really the first of the Progressive Era amendments and it led to a rapid and unchecked advance in the growth of the federal government.

Repealing the 16th Amendment would force the federal government to examine its spendthrift ways and would return us to the federalism of the federal government because states would now be in control of federal finances. States could decide for themselves how to collect taxes to send to Washington DC, based upon population. So, for example, Alaska might decide not to tax our citizens, but to tax the oil companies instead – which is how we fund a portion of state government now (the majority of our revenue is actually derived from the sale of our royalty oil on the world market, making the State of Alaska a profit-making entity). Clearly, if the federal government required our state to pay taxes directly to DC instead of individuals doing so, the state would need to collect move revenue, but as individuals would no longer be taxed directly by DC, a state income tax might be more manageable. The State of Alaska has a great deal more clout than I do individually when it comes to fighting Uncle Sam.  We might decide to tax Alaskan citizens’ sales transactions or income to provide for the federal maintenance.

States would once again have a stake in deciding how the federal government spends our money, which would make 50 US governors watchdogs to Congress and the President.

And it would be true to the original intent of the Constitution.

Yes, there is a risk that it might be replaced through amendment with some other national tax, but not if states were careful in their instructions to their delegates. I think most states, especially those west of the Mississippi, would rather stop taking orders from Washington DC and start giving them.

Can I get an AMEN?

Civil War Amendments   Leave a comment

In summary on the 13th, 14th, and 15th amendments, I agree in theory with what they accomplished, but they were written in a period of national crisis and that’s never a good time for substantive change. I think if you could poll every American adult, you’d find less than 1% of us would like to see a return of slavery. That is really not the point. The point is that these amendments were not carefully thought out. The exception in the 13th is a problem of a scale that is growing in enormity as America becomes the country with the highest percentage of incarcerated citizens in the world. The 14th Amendment has been used to blungeon the states in submission to the federal government. The 15th has been used as an excuse to violate state sovereignty in the area of voting and is currently used as an excuse to tacitly allow non-citizens to vote in American elections.

Looking at our past actions with regard to repairing them is what the original Framers were doing and it is perhaps a good idea now for us to do so again. The idea is not to radically change our government, but to reconfirm our commitment to it and to reform it when and where we see a pressing need that can gain the approval of 75% of the voting public as represented by our state legislators.

I believe that the exercise itself would be good for this country, providing ownership of the Constitution for this generation. The fact that it takes a broad consensus of opinion to change it means we’re all going to need to talk about it.

Wow! Communication? Now there’s a concept!

Voting Rights   Leave a comment

I’m working my way through the US Constitution’s amendments. The first 10 enumerate natural rights that are unalienable. Except for the 2nd Amendment, few people are seriously talking about repealing any of the Bill of Rights amendments and it is highly unlikely that 38 states could agree to repeal of any of them, including the 2nd Amendment. Therefore, I do not believe that the core principles of the US Constitution would be at risk in a Constitutional convention. The other 17 may need to be reviewed and amended or repealed as necessary by a Constitutional convention and other amendments may need to be added to correct problems that Congress has refused to address.

I’ve reached the 15th Amendment. What could I possibly have against assuring the right to vote for all? I don’t. I do think that a comprehensive amendment that combines the 15th, 19th, the 23rd and 26th (acknowledging the natural right of all adult citizens to vote) might be a good idea. Clarifying what these mean in a single amendment might eliminate arguments over voting rights. The discussion would at least help clarify it for our generation.

Many conservatives fear that an Article V convention would seek to eliminate of the Electoral College which would (not might, but would) lead to a tyranny of the majority whereby big cities and large-population states determine ALWAYS who will be president. That is an extremely dangerous situation that our Founders recognized and sought to prevent. I’m going to reiterate that Article V can only be used for states to apply for a limited-subject convention and that the delegates can only make recommendations for amendments other than the one the convention was called for, so there is no chance of a convention called to discuss a balanced budget somehow reforming the Electoral College because 38 sets of state legislative bodies would have ratify such an amendment.

Just spit balling, though — If anything, looking at the red-blue map, the Electoral College should be reformed to reflect regional rather than state population distribution because far too often national politics are dominated by large cities, disenfranchising suburban and rural voters, a situation the majority of our Founders would have opposed. The Founders designed the federal system the way that they did so that the large population centers would not be able to tyrannize the rural areas. Don’t believe me – read the Convention notes. They’re available online.

Restoring the Union … for Real   Leave a comment

Surely, I’m not going to suggest repeal of the 14th Amendment? I’ve just said, in my analysis of the 13th Amendment that I am completely opposed to all forms of slavery. So I should be in support of the 14th Amendment, right? Actually … not so much.

Let me preface this by saying I am opposed to all forms of government discrimination and of private discrimination where it involves a public service. If you operate a bus company, for example, I think you have to offer transportation to all comers, because you are supplying a public service. Excepting that, a private business has a right to decide which customers to have or not, but the rest of us have a right to boycott that private business if we disagree with it. That’s market democracy and it works. Don’t want black people/gays/unmarried folks staying in your bed-n-breakfast — you have that right, but I also have the right not to stay at your B&B and to tell my friends you’re a bigot and suggest they not stay there too. The government should not be involved in that.

So what do I have against the 14th Amendment? Let’s start with the idea that the federal government did not have the authority to force the states to abolish slavery. Slavery is unchristian and at odds with the Declaration of Independence’s foundational statement that “all men are created equal”, but the Constitutional framers saw fit to allow states to retain slavery if they wanted. Extra Constitutional writings support the historical fact that the Constitution would not have been ratified had it attempted to abolish slavery. Delegates who opposed slavery felt that over time the South would let go of slavery as less efficient than wage labor and that future Constitutional amendments would eventually end the institution, but that is not what the Southern delegates felt they were agreeing to.

The Constitution did not give the federal government the authority to abolish slavery in the states or to wage war against its own citizens who were acting in accordance with the Declaration of Independence when they seceded from what they deemed to be a tyrannical union. In essence, the 14th Amendment was imposed unconstitutionally on the Southern states as an act of war. While I agree that slavery needed to end, I don’t agree with how it was accomplished. For that reason alone, I think it needs to be revisited.

It’s also important to realize that the Southern states never ratified this Amendment. They accepted it, shoved down their throats as it were, as a concession of occupation.

Moreover, the 14th Amendment has been used to justify a great deal of federal abuse of states rights. Abortion until labor begins is the law of the land even though more than 50% of American voters say they are uncomfortable with it. Roe v Wade was decided on the 14th Amendment. Religious freedom has been undermined based on the 14th Amendment (google U.S. v. MacIntosh 1931; Everson v. Board of Education 1947; McCollum v. Board of Education 1948; Torcaso v. Watkins 1961; Engel v. Vitale 1962; Abington School Dist. v. Schempp 1963; Walz v. Tax Commission of City of New York 1970; Lemon v. Kurtzman 1971; Stone v. Graham 1980; Wallace v. Jaffree 1985; Edwards v. Aguillard 1987; Allegheny County v. Greater Pittsburgh 1989; Lee v. Weisman 1992). State sovereignty is non-existent because of the 14th Amendment (google California Proposition 187; Saenz v. Roe 1999; North Carolina Board of Education v. Swann; Washington v. Seattle School District; U.S. v. Yonkers; Missouri v. Jenkins).

The 14th Amendment has been used to give the federal government authority over every law in every state that relates to life, liberty or property, completely nullifying the principle of enumerated powers and the 10th Amendment protection for state rights.

Yes, we need to look at it, decide if, as written, it is congruent with our national values and repeal it and replace it as necessary. Slavery is not coming back, folks, but states rights should.

New Super PAC Forms to Support Treadwell   Leave a comment

I’m not a big fan of PACs. I sort of put them in the same category as political parties, a unnecessary muddying of the issues that we could easily do without, but it is what it is.

So Lt. Governor Mead Treadwell is running for US Senate in Alaska against Joe Miller and probably others, so he’s formed Freedom’s Frontier as a fund-raising arm. I guess that’s what we do today. Running it will be Steve Wackowski who was spokesman for Lisa Murkowski’s successful 2010 write-in campaign.

21st Century Slavery in America   3 comments

The 13th Amendment to the United States Constitution states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

I more or less agree with this amendment. Slavery and involuntary servitude are unchristian and destructive of liberty and should have been disallowed by the federal constitution a long time before this amendment was passed.

However, the phrase “except as a punishment for crime whereof the party shall have been duly convicted” is a problem for me. It’s a narrow exception that allows modern-day involuntary servitude by way of criminal conviction and necessarily encourages discrimination while denying a convicted person “equal protection of the law” as guaranteed by the 14th Amendment. Many states deny felons, even after their punishment has been served, the right to vote, the right to bear arms, the right to serve on a jury, and the right to run for and/or hold public office. The disqualification from employment that public records disclosures encourages is “cruel and unusual punishment” in violation of the 8th Amendment and some states won’t even allow felons many occupational licenses.

A felon living in the United States of American might as well be a slave – at least then they wouldn’t have to worry about putting food on the table. And, no, I have never personally had more contact with the law than a speeding ticket. This is a matter of fairness with a huge dollop of what-would-our-Founders-say.

The 13th Amendment to the United States Constitution is an unconstitutional law because it allows slavery to exist under a narrow exception for those who have been “duly” convicted for a crime. As such, modern-day slavery, by way of criminal conviction, necessarily encourages discrimination and denies a convicted person “equal protection of the law” guaranteed by the 14th Amendment, i.e. right to vote; 2nd Amendment right to bear arms; jury duty; disqualified from running for and/or holding political office, etc. Modern-day slavery by way of criminal convictions also subjects a convicted person to “cruel and unusual punishment” in violation of the 8th Amendment to the United States Constitution.

The 13th Amendment was supposedly designed to outlaw slavery in the United States, but what it actually did was target African Americans for criminal convictions. African Americans have the highest conviction rate of any racial group in the country. American Indians are second. Unfortunately, people of all races and ethnicities are becoming victims of the growing American police state.

America was founded on the ideal that “all men are created equal”. We haven’t always lived up to that idea. For whatever reason, we seem always to be most comfortable with some group being officially less-than in our society. First it was black slaves, then it was Indians. In our modern times, felons are the new “black.” That more of them are black than white perhaps feels justified to some of us, but increasingly, more whites are becoming felons. Protest too vigorously at a public gathering and you too could become a felon, denied the right to bear arms, vote, take certain jobs, in some states, even hold a professional license.

It’s fashionable to say that these folks chose to break the law and therefore deserve what they get, but think about what is against the law now that wasn’t 30 years ago.

The point is – what was not illegal when I was a kid is illegal today. Don’t pitch a fit on a plane if the stewardess treats you like a steer bound for slaughter, because calling her by the name she is earning could be called Assault and depending on how much force you put into it, it’s a felony. If you have to pee in the woods, make sure you can’t be seen from the road, because that is public indecency and if a child sees you, it could be sexual assault of a minor (a felony). And felons are a special class of citizen who are denied natural rights by the 13th Amendment. As the surveillance state and public records disclosure has increased, even felons who managed to become model citizens with no police contact in decades are now being laid-off of jobs they’ve held for years because of new federal guidelines that don’t allow felons to work. Hospitals that accept Medicaid funds cannot employ felons. This resulted in a friend of mine who spent a week in jail 30-odd years ago for selling pot to a cop (a felony that could have carried a year-plus sentence) losing his job as the director of a substance abuse program at a major hospital, a position he’d held for over 10 years. He went into private practice, but he can’t receive Medicaid funds, and his attorney is now researching if ObamaCare will allow him to receive ANY insurance payments. The man has a doctorate in Psychology and a Masters in Social Work and he may not be able to get a job in his field because of something he did when he was 18 years old. By the way, he hasn’t had so much as a traffic ticket in the intervening years.

Our Constitution should reflect our natural values. If we’re serious about that clause in the Declaration “all men are created equal, endowed by their Creator with certain unalienable rights”, then we need to take a real hard look at the 13th Amendment and fix what’s wrong with it. The Constitution was written to protect the liberty of all American citizens except slaves. The 13th Amendment was meant to correct that, except it just redefined who was a slave.

Again, an Article V convention would probably be called for another issue, so could not make any binding decisions, but could review the 13th Amendment and make a recommendation for alteration through a repeal and replacement process.

Creating Factions   Leave a comment

I think the Constitution is important and that a constitutional convention might be a good way to clean it up and eliminate some of the weird things that have been added to it in the last 200 years. I recognize that a general subject convention is not likely to happen, but I believe a states-called convention would be a good exercise in providing modern-Americans, who by-and-large have no ownership of the Constitution, with a sense that their generation actually has agreed to it.

Looking over the amendments, we should note that – with the exception of the 2nd Amendment – nobody is seriously debating the Bill of Rights. We may have issues with the court rulings about these amendments, but the Bill of Rights appears to be “safe” because people have a passionate attachment to them. Even the 2nd Amendment is unlikely to be repealed because 38 pairs of state delegates couldn’t agree to it. The “fry-George-Zimmerman” crowd would like to repeal the 6th right now, but only if it still applies when they go to trial, so I don’t see that going away. In fact, it might be a good thing for government minions to hear an up-down vote on these amendments, since some of these officials act as if these amendments have already been repealed.

See my previous post “We Must Protect the Bill of Rights” for my more-specific commentary on that subject. Moving on ….

The 11th Amendment – which basically says that the citizens of Texas can’t sue the State of Massachusetts because they allowed gay marriage – should probably be scrutinized, not for what it says, but for how it has been interpreted by the modern SCOTUS to claim that citizens of Massachusetts cannot sue the State of Massachusetts because it allowed gay marriage. It has also been interpreted to mean that the states surrendered their sovereign immunity from federal suits when they ratified the Constitution. Obviously this needs to be reconsidered because citizens of a state should have the right to bring suit against their state and federal governments. There are times when our state and federal governments enact laws that harm we the people in ways that do not cost us money or infringe upon us as a minority (usually the only two reasons you can sue the government). And, when these laws exist, denying us the right to meet our government in court abrogates certain principles of self-government. The like-it-or-lump-it interpretation also defies the clear reading of the text. It was designed to keep states from forcing other states to comply with their constitution. That makes sense. If I don’t like living in Massachusetts because I oppose gay marriage, I can move to Texas where the view of marriage is more traditional, Mass and Texas were considered sovereign territories cooperating with one another for their common good. That the 11th Amendment was interpreted to mean you can’t sue the government except under very limited circumstances, but the federal government can sue the states speaks to a early grab for power by the federal judiciary on behalf of the other branches that is out of character with the clear meaning of the actual Constitution. We the people are the rulers, government is our servant, but if we can’t object to what government lays upon us, we cease to become the rulers and instead become the slaves.  We should look at it and decide if it has any business being in the Constitution.

The 12th Amendment enshrines the two-party system which has caused a great many of our problems in the United States. More than that, the vice president, with so few constitutional powers, was intended to be a watchdog against abuses of the president, to report abuses of presidential power to Congress for the purposes of impeachment. He’s presiding officer of the Senate, after all. Consider the early structure of the presidency. The President was the one who got the most votes, while the Vice President was the one who got the second-most votes. Clearly they were going to start out as adversaries. Why include that in the Constitution? Because even though they fully intended for George Washington to be the president, they could foresee a time when a lesser man would inhabit that office and Congress might need to act to remove him. But how would Congress find out that the President was operating outside of his Constitutional authority if no one was about to observe his behavior who was also willing to report that behavior. Oh, well, the Vice President is also the head of the Senate. How convenient! Impeachment was defanged by the 12th Amendment because, seriously, who would remove Barack Obama for Joe Biden willingly? But imagine Barack Obama’s presidency with John McCain or Mitt Romney looking over his shoulder. Not strong enough checks and balances? Imagine John F. Kennedy with Barry Goldwater as an adversarial VP? Now we’re talking checks and balances! Rand Paul looking over Hilary Clinton’s shoulder or the reverse would also do the trick.

Our Founders didn’t agree on much with one another, which is why they gave us a brilliant Constitution that fosters disagreement except on very popular issues and even then, it takes a LONG time to enact those issues. It meant we really have to want a change before we get that change and that was considered a good thing. Judging from history, it was a good thing. About the only thing our Founders could agree on 100% was the folly of “faction”, what we would call political parties. Some of the Founders actually wrote concerning political parties (factions) as they arose. They didn’t like them and they would be puzzled and possibly revolutionized by our current system.

The other thing that had broad agreement among them was the absolute need for gridlock – for issues to be debated to death so that they either expired a well-earned death by languishment or passed because they enjoyed broad public support. The Founders would have been absolutely shocked by the spectacle of an extremely unpopular intrusive law like the ACA passing so swiftly because a single political party was in control of all three branches of elective office.

Doing away with political parties or allowing more than two parties to have a viable action within elections would be good for America, but the 12th amendment pretty much prevents it from happening.

An Article V convention would have to be called on a limited subject (most-like a balanced budget amendment, since we’re close to the threshhold now), but that wouldn’t prevent the delegates from making recommendations for other amendments to be sent to the states for ratification. Congress won’t probably act because Congress is useless, but states could if we decided we needed to.

Debate is good and fixing past mistakes, no matter how well-intentioned, is also very good.

We Must Protect the Bill of Rights   1 comment

Did you hear?

Nancy Pelosi and the Occupy Wallstreet crowd want to repeal the 1st Amendment because they don’t like corporations being able to give large sums of money to the political campaigns of Republicans.

See, THIS is the reason we can’t risk a constitutional convention because the radicals would be able to do away with the Bill of Rights.

Again, a Constitutional convention is only allowed to amend the Constitution, not throw out the whole thing. This is not 1787 and the Articles of Confederation have not failed after only eight years of use. The US Constitution, unlike the Articles, allows for amendments to be proposed by either Congress or the state legislatures.

Do you think your state legislature would authorize your state delegates to rewrite the Bill of Rights and then ratify an amendment repealing the First Amendment?

I don’t know your state, but I’m rock-solid certain that Alaska’s legislature would not do that. Yes, the Bill of Rights are amendments to the Constitution, so could be modified, but 75 of the 99 state legislative bodies would need to ratify any amendments, which would require a consensus of opinion.

Yes, there are radical elements that would love to make changes to the 1st Amendment, but three-quarters of the legislative bodies in the states is a pretty high threshold that should prevent radical changes to anything that has been working so well for so long.

On the other hand, we could use such a convention to discuss and possibly clear up whether corporations are people and have a right to free speech. I think most of us think of these as individual rights and recognize corporations are not individuals (or even people), but the debate would do the country good.

What about the 2nd Amendment? You know the radicals want to do away with that. Yes. But – 80 million Americans (about half of US homes) own more than 223 million guns. A 2011 Gallup poll showed that only 26% of American citizens would support a handgun ban and about 70% of Americans currently (in the wake of Sandy Hook, no less) oppose an assault weapons ban. Maybe they saw the same sheriff’s video I saw that showed the Bushmaster still in the trunk of the shooter’s car after he was dead or maybe the American people are just saner than the media want us to believe. Again, three-quarters of the legislative bodies in the states several would have to ratify an amendment for it to become part of the Constitution. Following Sandy Hook, four states have increased gun control, but three relaxed their gun regulations. Nine states have “stand your ground” laws and 45 states have concealed carry permits. Of course, maybe we ought to take a look at clarifying that 2nd Amendment language to clear up the confusion over militia, individual versus collective right, etc.

We shouldn’t take the 3rd Amendment lightly. Although soldiers have not been quartered in our homes during peace time since the Constitution was written, there are instances of police possibly violating this amendment, for instance, using private homes for stakeouts even when the homeowner objected. I think it’s probably safe from modification and again – three-quarters of the legislative bodies in the states several is an intentionally high bar.

The 4th Amendment – is that still in the Constitution? While I can’t imagine three-quarters of the states agreeing to substantially modify it, a conversation about what security in your person, property and papers means might do us some good. Maybe the states could make it clear to the NSA that the 4th Amendment is still in the Constitution by voting to keep it in.

The 5th Amendment appears to be quite popular with the federal Executive Branch of late. It goes all the way back to Anglo-Saxon law. I think the bar that protects it is high enough if common sense fails the delegates.

The 6th Amendment is still in the Constitution, but it wouldn’t be a bad idea to discuss it, especially whether it and the 7th Amendment apply to citizens of the United States or to anyone who happens to somehow show up here.

The 7th Amendment could use a good airing out. Seriously, do any of us think three-quarters of the states are going to vote to remove jury trials from the Constitution? But maybe we need to talk about what a jury trial means, especially given the anger surrounding the Zimmerman verdict.

I thought we’d already repealed the 8th Amendment, but Wikipedia says it‘s still there, so …. What are the limits of cruel and unusual in this age of federal drug enforcement and determinant sentencing? In Alaska, you’ll do 99 years for 1st degree murder, unless you plea to 2nd degree and then you’ll do 99 years. Yeah, I can’t explain it either. Bail is now routinely not allowed or set so high that nobody can post it. A couple of weeks back, a guy on a DWI was denied bail on the grounds that he might drink while awaiting trial. And, I daresay, Alaska’s justice system isn’t that out of step with the rest of the country. I think we need to clear up what this amendment means. I don’t see a substantial change being ratified by 75% of states, but I think the conversation would do us good.

I don’t know that I ever studied the 9th Amendment in school. Pity because it’s key to understanding how the Founding Fathers thought about the liberties they were restraining the government from infringing. They didn’t believe they were creating these liberties. They were acknowledging some (not all) of the rights that no government could properly deny. They suspected they might have missed some, so they put a provision in the Constitution to cover themselves because they wanted individual liberties protected, even if they missed a few. Affirming that shouldn’t be a problem … right? And if it is … again, three-quarters of the states and all that.

The 10th Amendment has essentially been repealed in practice. The last time the states had rights the federal government acknowledged was in the 1950s. I cannot imagine that any state is going to vote to repeal the 10th amendment, but if some do, I don’t think it likely that 75% of them will. And, like the 9th that says rights belong to individuals and Congress may not infringe upon them, a conversation about enumerated federal authority and states rights is a long time overdue. This is really the whole purpose of calling a constitutional convention – to put the states back in the driver’s seat where they were always supposed to be and largely were prior to the Civil War.

My analysis is that the Bill of Rights is largely safe from major meddling by a general subject amendments convention, not necessarily because delegates wouldn’t propose amendments to it, but because 75% of states wouldn’t ratify the amendments.

By the way, this is all assuming that we the people know who are state legislators are and will be communicating with them about what we want to see.

And, also remember, that Article V requires that a convention be called for a particular subject, so the convention cannot propose changes to, say, the Bill of Rights if states haven’t applied for those changes, but the convention can discuss and recommend changes that the states can then apply for. I see this as a good 10th amendment way to take the temperature of the country about the Bill of Rights. There is a small minority of Americans who think these should be suspended. It might be good for them to be served notice that they are a minority.

Most Successful Use of Article V   2 comments

I’m not a fan of the 17th Amendment, so this is a hard topic to discuss dispassionately. For now, I don’t wish to discuss the merits of direct election of senators, but rather the process that was used to bring it about. The merits or lack thereof are a different topic.

After the Civil War, members of Congress occasionally suggested that states apply for a convention for proposing amendments, but there was little campaigning for one. I’m going to suggest that the Civil War pretty much cowed most states, even the northern ones, from asserting their rights, by sending a clear message that the federal government would put down by force any attempts at state sovereignty.

It was nearly 40 years (about a generation, interestingly) before there was a wide-spread outcry for a states-application-for-convention movement. Those who had not lived through the Civil War felt a bit more comfortable asserting states rights once more. It was the turn of the 20th century when mankind tends to embrace change. The progressive movement was gaining speed. If you remember the history of the progressives, they were mostly resort liberals from the east coast who thought America should emulate Europe. Additionally, they believed (believe) themselves to be of superior intellect and moral fiber compared to the rest of American society.

The original Constitution had specified that members of the House of Representatives were to be elected for two-year terms by those voters in each state who had “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Because in nearly all states voting qualifications for the lower legislative chamber were fairly minimal, this rendered the House a very democratic institution – a creature of the people.

To balance that democratic influence with seasoning and stability and to give the states a role in federal governance, the Framers prescribed that two Senators be elected by each state legislature for six-year terms. I’m not conjecturing this. Read the Anti-Federalist Papers which includes the notes from debates at the 1787 Convention. This was a deliberate republican safeguard to provide balance against the inherent excesses of democracy. This method of election has been credited widely with producing, at least during the first half of the 19th century, a Senate of good quality and some Senators of outstanding quality. There were, however, at least three drawbacks to the system:

• smaller electorates (e.g., state lawmakers) are easier to corrupt than larger electorates (e.g., the entire people). Although cases where candidates purchased Senate seats from state lawmakers were few during the early years, they multiplied after 1850 (this coincided with the rise of large corporations, interestingly).
• the system was prone to deadlock. State legislatures sometimes had to ballot for months on end while their state remained underrepresented in Congress. A deadlock delayed the selection of New York’s senators in the First Congress, and the phenomenon became more and more common as time wore on. Between 1891 and 1905, there were 45 deadlocked senatorial elections in 20 different states. Deadlock often was broken by “stampeding” – last-minute election of a dark horse who no one previously had thought to be of senatorial material.
• because people “voted” for a Senate candidate by voting for state legislators, federal and state issues became bundled, with state issues often entirely submerged, both among the voters (the Lincoln-Douglas senatorial race of 1858 is the most famous example) and among state lawmakers.

Allegedly to cure all of these ills, the progressives sought to move election of U.S. senators from the legislatures to the people of the several states. American historians, who tend to sympathize with the progressives, sometimes imply that direct election was the only possible corrective, and they sometimes depict the campaign as opposing idealistic progressive reformers to the “greedy corporations” that controlled a “Millionaires’ Club” of “plutocratic” senators. As is often the case in history, the truth is more complicated.

There were available remedies short of constitutional amendment. Article I, Section 4, Clause 1 of the Constitution provides as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

Although each state initially set its own election rules for both House and Senate, Congress was permitted to override those rules to a considerable extent. Thus, Congress could alter the “Manner of holding Elections” for senators within the state legislatures to specify procedures less subject to deadlock. For example, Congress could require that elections be conducted by joint votes of both legislative chambers. It could mandate that a winner need only a plurality rather than a majority of votes.

The Senate had the power, which it had occasionally exercised, to expel members for corruption. A constitutional amendment was not required to strengthen the relevant law or Senate rules. The worst abuses of the legislative election system were solvable without taking the election from the legislatures.

Congress enacted poorly-crafted regulatory legislation in 1866 to relieve the deadlock problem. The progressives used this as “proof” that a mere change in the law would not do. The fact that Congress considered and rejected the plurality winner rule several times strongly suggests that progressives had more on their minds than corruption, deadlock and issue bundling.

What else might they have been after? Statistical research by historian John D. Buenker shows that the contest was not really between “idealists” and “plutocrats”. Buenker concludes that a key component in the coalition for direct election consisted of the big-city political machines, mostly (but not exclusively) Democrat. The urban bosses saw direct election as a way to amass greater share of power for themselves and for the ethnic groups they represented. In some states, the goal was more purely partisan – direct election was seen as a way to weaken Republican senatorial candidates while benefitting Democrats and Populists. For example, Rhode Island pitted urban-based Democrats, aided by a few Progressives and Republicans from similar constituencies against the rural and small-town-based Republican organization.

Interesting how we’re still struggling with the dichotomy between the big cities and the rural-exurban communities.

More importantly, the progressives strongly favored augmenting federal power. Direct election would end state participation in Congress, and thereby facilitate federal incursion into areas of policy traditionally under state control – education, health, safety, food inspections, manufacturing, road construction, elections, parks, etc.

Direct election enjoyed very high levels of popular support – perhaps even higher than the modern popularity of a balanced-budget requirement. Direct election seemed a viable way of attacking corruption and state legislative deadlock, just as a balanced-budget requirement is seen now as a way of imposing more fiscal restraint.

State legislators also appreciated the cause. Even though transferring senatorial elections to the voters would reduce the power of state lawmakers, most of those lawmakers had become thoroughly disgusted with deadlock, long periods without senatorial representation, and the overshadowing of state issues in state legislative elections.

Efforts to induce Congress to propose an amendment had proved fruitless. When the state application campaign began in 1899, the House of Representatives already had voted three times for such an amendment; the Senate killed it each time. The same thing happened again in 1900 and 1902. Most senators simply had no interest in altering the method of election that had elected them. A cause with overwhelming public support seemed permanently blocked in Congress, just as more recent causes with overwhelming public support, such as proposals for a balanced budget amendment and term limits, have been blocked in Congress.

Advocates of direct election understood that Americans often have amended their Constitution not so much to change the fundamentals of the system as to restore or reinforce those fundamentals. Those advocates therefore cast their amendment in those terms. As the 1911 Senate Judiciary Committee report, recommending the 17th Amendment, said, social change required altering the mode of election, “not for the purpose of changing the fundamental principles of our Government, but for the purposes of maintaining the very principles which the fathers sought to establish.” America, it was said, is a democracy, but there’s this whole chamber in DC that is not elected by the people. We need to correct that.

Americans at the time of the direct election movement remembered most of their constitutional history, understanding that when applications from two-thirds of the states are received, Congress has no choice in the matter – it must call a convention. They also understood that state applications can limit the subject matter, but that the convention, not the states, actually drafts the amendment. States targeted their applications toward direct elections, while not purporting to dictate the amendment’s precise language.

On the other hand, there was enough constitutional amnesia that opponents were able to argue that a convention for proposing amendments was a “constitutional convention” which held an inherent risk of runaway. This appears to be the first time such beliefs were widely broadcast and some proponents played into their adversaries’ hands by referring to the assembly as a “constitutional convention.” The belief was not widely enough held to derail the movement.

The campaign began with various efforts to induce Congress to report an amendment of its own. Nebraska, Texas and Pennsylvania requested during the 1890s, while Georgia, Arkansas and Oklahoma formed committees to explore the issue in the first decade of the 20th century.

The Pennsylvania application form, which it sent on to other states, read:

Whereas, A large number of State Legislatures have at various times adopted Memorials and Resolutions in favor of election of United States Senators by popular vote; And Whereas, The National House of Representatives has on four separate occasions, within recent years, adopted resolutions in favor of this proposed change in the method of electing United States Senators, which was not adopted by the Senate;
And Whereas, Article V of the Constitution of the United States provides that Congress, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, and believing there is a general desire upon the part of the citizens of the State of Pennsylvania that the United States Senators should be elected by a direct vote of the people Therefore, be it resolved … That the Legislature of the State of Pennsylvania favors the adoption of an amendment to the Constitution which shall provide for the election of United States Senators by popular vote, and joins with other States of the Union in respectfully requesting that a convention be called for the purpose of proposing an amendment to the Constitution of the United States, as provided for in Article V of the said Constitution, which amendment shall provide for a change in the present method of electing United States Senators, so that they can be chosen in each State by a direct vote of the people.
Resolved, That a copy of this concurred Resolution, and application to Congress for the calling of a convention, be sent to the Secretary of State of each of the United States, and that a similar copy be sent to the President of the United States Senate, and the Speaker of the House of Representatives.

This carefully drafted form clarified that the legislature was applying formally for an Article V convention to consider only the particular subject matter of direct election of senators. This was consistent with the Founders’ expectations and it reassured others that the applying state did not seek to rewrite the entire Constitution. The approach of limiting the convention to a single issue also was familiar to state lawmakers since a single-subject rule commonly was (and still is) applied to state bills. The form properly named the assembly sought as a “convention … for the purpose of proposing an amendment,” rather than a “constitutional convention.”

Soon, there was a flood of similar direct-election applications based on the same principles as the Pennsylvania application. Minnesota, South Dakota, Washington, Oregon, Oklahoma, Louisiana all filed applications in short order. Despite some confusion sowed by the opposition, for the most part the organizers of the direct election application campaign remembered constitutional rules laid down by the Founders:

  1. single-subject applications were permitted and expected,
  2. applications could not actually draft the amendment, and
  3. the procedure was designed to make reforms that Congress would not undertake itself.
  4. an amendments convention was a gathering of delegates of states.

The Article V convention never took place because the Senate voted the amendment out for ratification by the states just short of the requisite number of applications. Since that time, there has been strong public sentiment against such a convention, owing to a lack of understanding of the constitutional constraints that have always been in place.

It’s important to note, however, that we are two states applications away from a Article V convention for a balanced budget amendment. Historically, Congress acts at this point.

Do we think this Congress will??????

Could We have Avoided the Civil War?   7 comments

If you’re like me, you wonder why the states did not make use of the Article V state-application-for-convention process to avoid the Civil War? My high school history books (and I confirmed this in my daughter’s high school history book) informs us that Congress was hopelessly deadlocked because slavery had become the 19th century third-rail of politics. So why didn’t the states take action?

The simple answer is that some of them did try to make use of the system, but they tarried unduly, contributing to the tragedy that would follow.

Compromise to stave off war and preserve the union typically included one or more constitutional amendments. Senator John J. Crittenden of Kentucky was a highly respected moderate. To modern thinking, the Crittenden plan is unacceptable. It proposed to protect slavery where it existed, enforced the fugitive slave laws and admitted slavery into western territories south of the old Missouri Compromise line. It also reversed Dred Scott, which said slavery was forever legal in all the territories. It would have eventually ended slavery by isolating it in a region of diminishing relative economic and political importance. It would have preserved the union and saved 600,000 lives, 500,000 wounded and the domination of the South by the North for the next century. Crittenden’s plan received a good amount of public support, but Congress was never going to propose a constitutional amendment of this sort. They lacked the two-thirds majority to make it happen.

Advocates for maintaining the union considered the state-application-for-convention method when they realized Congress could not and would not act. At a cabinet meeting on November 9, 1860, President Buchanan supported an Article V convention to propose an “explanatory amendment” on the subject of slavery. In the ensuing months, several members of Congress – including Representatives Charles Larrabee of Wisconsin, John C. Burch of California, and Reuben Fenton of New York – all offered congressional resolutions encouraging the states to apply under Article V. George E. Pugh of Ohio and James W. Grimes of Iowa did the same in the Senate. On March 4, President Lincoln, now newly inaugurated, said that while he had no specific amendments to recommend, he had no objection to amendments generally, and that he preferred proposal by a convention to proposal by Congress. He probably knew Congress was not going to act.

Meanwhile, the Commonwealth of Virginia – which had not yet seceded – called for a less formal interstate convention. The Commonwealth commissioned former President John Tyler as its envoy to Washington. Congress took no action, but throughout most of February 1861, 133 commissioners from 21 of the 34 states met in what came to be known as the Washington Peace Conference. Tyler served as chairman. At the Peace Conference, Virginia recommended a settlement based on the Crittenden plan, and the ultimate recommendation of the conference was a variation of that proposal. Unlike an Article V convention, however, the Peace Conference had no constitutional standing to propose amendments directly to the states. Instead of promoting an Article V convention, the Peace Conference decided to submit its proposal to Congress, which was in political deadlock. The Senate rejected the recommendation of the Peace Conference, and the House refused even to consider it.

Doesn’t that sound familiar?

Several states decided to attempt to break the deadlock by filing Article V applications. We do not know how many valid applications there were because all do not appear in the congressional records. They may not have been transmitted or Congress, which had no established way of handling such documents, simply failed to record them. Illinois’ application does not appear in the congressional records, but those records do state that on February 28, 1861, New York Senator William Seward announced that Kentucky, New Jersey, and Illinois already had applied; two days later, Illinois Senator Lyman Trumbell said the same thing. Kentucky applied first (January 24, 1861), suggesting as a basis for settlement the compromise offered by that state’s favorite son, Senator Crittenden. The application’s operative wording was for a general convention rather than one limited by subject matter:

“Resolved … That application to Congress to call a convention for proposing amendments to the Constitution of the United States, pursuant to the fifth article, thereof, be, and the same is hereby now made.”

New Jersey applied the next day, stating in part:

4. And be it resolved, Th at the resolutions and propositions submitted to the Senate of the United States by Hon. JOHN J. CRITTENDEN, of Kentucky, for the compromise of the questions in dispute between the people of the northern and of the southern States, or any other constitutional method of settling the slave question permanently, will be acceptable to the people of the State of New Jersey, and the Senators and Representatives in Congress from New Jersey be requested, and earnestly urged, to support these resolutions and propositions. 5. And be it resolved, That as the Union of these States is in imminent danger unless the remedies before suggested be speedily
adopted, then, as a last resort, the State of New Jersey hereby makes application, according to the terms of the Constitution, of the Congress of the United States, to call a convention (of the States) to propose amendments to said Constitution.

The Illinois legislature adopted its application on February 12. Indiana sent their application to Congress on March 8, requesting Congress to call a convention of the States to take into consideration the propriety of amending the Constitution, so that its meaning may be definitely understood in all sections of the Union…. The Ohio legislature applied March 10, bringing the tally to five states. Unfortunately, the movement had not begun in time. When Ohio submitted its application, seven Southern states already had seceded, though there were three applications transmitted after the Civil War had begun. One was a reaffirmation from Kentucky, adopted in 1863. In March 1864, North Carolina, although still in rebellion, applied for an Article V convention to resolve the war, and in September 1864, Oregon submitted a single-subject-matter application for an amendment abolishing slavery:

Whereas, article five, section one of the Constitution of the United States provides for its own amendment … and whereas in the process of the rebellion, it has become apparent that African slavery has been the cause thereof, and that there can be no permanent peace with slavery as a political element in the government, or with any of the attendant laws in force in States thereof, and believing that the Constitution ought to be so amended as to forever prohibit involuntary servitude, except for crimes within the United States and the territories thereof, therefore,
Resolved That application is hereby made to the Congress of the United States for calling a convention for proposing amendments to the Constitution of the United States.

The lessons from the state application process during the Civil War and the years leading up to the war reinforce certain conclusions reached earlier. The Founding-era view was that an Article V convention was the creature of the state legislatures, and not of the people directly. During this period, the assembly was referred to repeatedly by the phase “convention of the states” and certain variants. This was true not only in the South, but in border states (i.e., slave states that had not seceded) and in the North. Others called it by its constitutional name – a “convention for proposing amendments.” It is notable that few, if any, mistook it for a constitutional convention.

Most state applications during this era asked for a general, rather than limited-subject, convention, because the crisis required a comprehensive solution. Yet Oregon’s application for an amendment abolishing slavery showed that the constitutional option of a limited-subject convention had not been forgotten.

Might a convention for proposing amendments averted Civil War? Certainly some of the most respected political leaders of the day – including Presidents Buchanan and Lincoln, and a number of U.S. senators – thought that it might. What if wasn’t, so we’ll never know certainly, but it certainly would have been a prudent step to take before Americans started shooting at Americans. I can’t see how a convention of state delegates to propose amendments to the Constitution could have been any more harmful to the Union than what actually happened.

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