Re: Article V - an analysis (fwd)

[Jim Choate <ravage@EINSTEIN.ssz.com>]

Forwarded message:

> Date: Wed, 25 Nov 1998 15:34:35 -0800
> From: Todd Larason <jtl@molehill.org>
> Subject: Re: Article V - an analysis (fwd)

> On 981125, Jim Choate wrote:
> > > > Why is this problematic? 
> 
> Whether it's problematic or not depends on your goals.  It gives reason to
> doubt that your interpretation of the effects of a Convention called under the 
> current constitution would hold, as (as you now say), such a Convention
> has the power to change the rules by definition.

How? Explain what part of Article V leaves this hole open. Explain the
relevance of the operational proceedures used during the transition from the
Articles to the current Constitution to the modification of the Constitution
itself within the bounds of its own structure? Congress wasn't even involved
in that original process because it didn't technicaly exist until after the
ratification. Why would a precedence involving state legislatures be found
to hold on a national legislature? There is also the issue that the
Constitution once duly implimented is the supreme law of the land and it
takes precedence over precedence.

This is apples and oranges.

Bottem line, if 3/4 of the states ratify there isn't anything that keeps it
from being law. The most that Congress can say is whether it's a direct vote
in the legislature or a vote by convention.

> There was a time period (I don't know how long, but certainly no more than
> a few months) where some states were operating underthe Constitution and
> others were still under the Acts.

Which is relevant how?

> I don't think it specifies, but what has always happened is that the *same
> resolution* which proposes the amendment specifies which ratification method
> will be used.

That can't work if the resolution comes from the states. Only Congress has
the authority to decide that issue. So the only way a proposed amendment can
be placed up for debate and at the same time specify how it is to be voted
on at the state level is if it comes from Congress in the first place. A
proposal submitted by the states would force the debate of how it was to be
decided. Once that was settled it would be passed back to the appropriate
state legislature for direct vote or the initiation of a convention if
sufficient votes could be found.

> There's only a time limit because Congress has started specifying one, in the
> same resolution which proposes the amendment and specifies the ratification
> method.  (Exception: in the case of the ERA, I believe they later extended the
> limit).  The power to specify a time limit isn't mentioned in the Constitution 
> as you note, but has also never been tested.

I assume your speaking of the prohibition amendments again and their limits
(7 years I seem to remember).

That raises an interesting point. Suppose that the states submit an
amendment proposal, can Congress modify it? I'd say not because of the 10th.
If they could then the power of the states to submit amendments would be
moot.



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