Time For an Overhaul!
9 Comments Published November 30th, 2008 in National and International Issues.The ‘Saxbe Fix’ makes an old question new again.
One of the many ways that politicians lie is when they interpret the Constitution of the United States. Republicans like to advertise themselves as strict constructionists. That is, “It says what it says and that’s the way we should do things!” They usually get overwrought about this kind of thing when fulminating over things like states rights. The Tenth Amendment to the Constitution states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
It seems pretty clear to me. If the Constitution doesn’t say the Federal Government has a power, then it doesn’t. The States have that power instead. That’s the point of view Republicans take too.
But two hundred years of case law have pretty much nullified it. Starting with McCulloch v. Maryland (1819), the Supreme Court has held that federal laws trump state laws across the board. In 1931 (United States v. Sprague) they added insult to injury by stating that the Tenth Amendment “added nothing to the [Constitution] as originally ratified.”
Federalists have hung their hat on the Commerce Clause in Article 1, Section 8 instead. This one reads:
The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
And, in the political double-talk that has become a fine art in America, EVERYTHING seems to be “commerce … among the several states” from labor relations to civil rights. Even the far-right strict constructionist Antonin Scalia deserted his principals when he voted to uphold a federal law against the use of Marijuana (Gonzales v. Raich, 2005) on the grounds that it was “interstate commerce” under the Constitution. Even though the Mary Jane in question was grown and consumed entirely within a single state. Stamping out demon weed is more important than intellectual honesty, it seems.
Why is this important today? Obama wants to appoint Hillary as Secretary of State, but unfortunately, there is a constitutional prohibition. Article I, Section 6 states:
No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time.
And, again, that seems quite clear to me. But the professional liars (you know, the ones we keep re-electing) have twisted it around to add the meaning, “Unless we pass a law to take back that emolument for somebody we really want to appoint.” That’s like saying, “I ain’t guilty of no bank robbery because I gave the money back.”
This is called the “Saxbe Fix” because Nixon and his tamed Republican Congress used it to appoint Senator William Saxbe as attorney general during the Watergate mess. But Democrats, including Carter and Bill Clinton, have used it too. Nobody stays clean in a mud fight.
The problem is that the Constitution – although a remarkable and wonderful breakthrough in laws in 1787 – is an antique instrument that desperately needs a wholesale revision. Article 1, Section 6 might be OK for a small town in the late 1700’s, but it’s hopelessly useless in governing the United States today. And virtually nothing would wreck the United States more certainly than actually starting to follow the Tenth Amendment and allowing each of the fifty states to start acting like independent countries.
Fortunately, there is one clause in the Constitution that anticipates this too: Article 5, the Constitutional Convention clause. There are two ways to amend the Constitution but so far only one of them has been used. All amendments to this point have been done by being proposed and ratified individually. Article 5 of the Constitution describes the other method like this:
“… on the application of the legislatures of two thirds of the several states, [Congress] shall call a convention for proposing amendments, which … 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.”
Possibly the worst desecration of the Constitution has come in the last eight years under the tyranny of Bush. He’s acted like he can rewrite it unilaterally and basically do any damn thing he pleases. This damage must be undone!
Obama is a constitutional lawyer by profession (that’s what he taught in law school). There is no better time than now to do it.
nice blog! thanks for the work in composing it!
having been on about this subject for a little while, i would humbly request that the phrase “Constitutional Convention” be removed as it has been used for years to frighten folks away. simply put, it’s the convention clause. the CC term evokes a wholesale re-write of the Constitution in most folks’ minds.
also, there is only one way to “amend the Constitution.” that is ratification by 38 states. there are two ways to Propose amendments, but only one way to amend.
this link is helpful in articulating the legal basis for the Article 5 Convention: http://wiki.lessig.org/Article_V_Convention
this link houses the database of state applications: http://www.foavc.org
Thank YOU for the response, the clarification, and the links.
We seem to agree on a lot, but not on one thing. I like the phrase, “Constitutional Convention” and it should scare people. This is serious stuff. But a “wholesale rewrite” is actually what we need. And a “Constitutional Convention” is the way to get it.
a “Constitutional Convention” is a convention to draft a constitution. i believe the one we have is fine, it’s simply due for an amendment (or two).
also, the Article V Convention can only propose amendments “to this Constitution….” if you believe we need a wholesale rewrite, you must first propose an amendment allowing that, get it ratified by 3/4 of the states, and then have your new constitution written and ratified. that’s the only legal way to do it.
when you say this is serious stuff, it’s really not–or not in the sense i think you mean: we recently held two conventions in this country, the repub and dem conventions. the delegates to each of those conventions did not mandate who would be president, they simply built consensus about who they thought ought to be.
the convention clause allows for the same kind of convention, the delegates do not create new law, they simply propose it and go home. the Article V Convention is as serious as open discussion can be. and since ratification is set at 3/4 it means whatever is proposed, whether conservative or liberal, the idea proposed must get all of one side signed on, plus at least half of the other. 75% ratification santifies the popular will. in other words, if an idea is even slightly questionable, it will await ratification in vain (as thousands of proposed amendments do today).
the Article V Convention is serious in one regard: breaking the status quo in order for it to be reformed. likely the only amendment to garner the approval by 38 states today would be a 28th Amendment concerned with electoral reform, imo.
This discussion is a great example of how words that you might think are clear and unequivocal can, in fact, not mean the same thing to everyone.
To me, a “Constitutional Convention” is a convention about the Constitution. And “overhaul” means a series of changes, not a fresh version on blank paper.
It seems to me that once we get a “convention” together for the purpose of proposing amendments, an army of the Orcs of Mordor couldn’t stop them from proposing all sorts of changes at once. And your later comments support that (”thousands of proposed amendments today”). Ergo, “Constitutional Convention”.
Checking into these “thousands” however, reveals that you’re using the word “proposed” in its most liberal sense too. ( http://www.usconstitution.net/constamprop.html ). These are “proposed” only in the sense that one of the nut jobs we keep sending back to Washington introduces a bill. They’re not waiting for ratification by the states as the proposals that would emerge from a “Constitutional Convention” would be. The “proposed amendments” which reach this status are few indeed: http://www.gpoaccess.gov/constitution/pdf2002/008.pdf .
The “Constitutional Convention” that we both favor would short circuit the Congressional route and could fast-track a series of amendments to the states for ratification in a manner that would be … well … an “overhaul”.
there is the subjective and the objective, of course. but since our u.s. constitution is unique in all political history, so too is the particular convention named in it. since the constitution is one of a kind, so too is the Article V Convention. it’s a proper noun as a matter of fact.
a CC and an AVC are two different things. i understand the sentiment which equates the two to set to the same work, but if you really want one, i can tell you from experience, to use them interchangebly in speech makes many people envision a destruction of the constitution we have now. in terms of political science it defeats the purpose, if the purpose is to help bring about a national convention.
the proposed amendments awaiting ratification are just that, proposed amendments. just as the 27th was originally proposed by madison himself along with the bill of rights, it awaited ratification for over two hundred years.
while people lament the human condition, its greed, ignorance, etc., one of its pluses is that when people come togehter consensus happens. it’s natural. when those delegates get together, it will be such a momentous and historic moment, their egos will be seeking to craft an amendment which has a decent chance of being ratified.
the convention short circuts nothing really, it simply opens up the alternate route to proposal/ratification and change. the congress does not shut down if we coerce a convention out of it.
the overhaul you speak of would be the overhaul of the current corporate status quo where no amendment proposals make it to the floor. that is something different than an overhaul of the principles written into our high law.
I believe we understand each other now. There does seem to be a difference in values, however. I “value” the sheer shock of the concept of a “new constitutional convention”. The shock of a black man with a liberal point of view running the country was unthinkable a few months ago. But that shock is actually helping to clear old ideas out now.
It seems to me that attempting to “soft sell” the concept as you seem to want to do is disingenuous at best and self-defeating at worst. I’d rather hit ‘em with the full force of a radical approach.
i used to be like you i suppose. but i can tell you, having discussed this subject with literally thousands of americans in most every state of the union, and having discussed/debated it for about seven years on the internet, and being part of two federal suits (one having gone to the supreme court, the other headed there), if you really want a national convention you’d make sure whomever you’re talking with about it, that they’re cognizant of the distinction between to two types of convention.
if research shows less than five out of ten want a radical approach–maybe more like two of ten–then your approach of constitutional shock and awe is bound to fail. either you want a convention held on the authority of the constitution, or you don’t.
if you do, then you’d re-read carefully what i’ve said, and re-read carefully the intial link i provided above. you’d know these concepts forwards and backwards.
I think you’re thinking of Hunter v. Martin’s Lessee – McCulloch v. Maryland enshrined a loose constructionist interpretation by allowing Congress to use the necessary and proper clause to justify the 2nd Bank of the US.
Wow! Penetrating comment! I’m impressed.
However …
No, I was referring to the right case. The point at issue was states rights versus federal power. As Wikipedia puts it:
The principle of the supremacy of federal powers over those powers held by the states is based on the Supremacy Clause of the U.S. Constitution. In McCulloch v. Maryland, Chief Justice John Marshall asserted that the laws adopted by the federal government, when exercising its constitutional powers, are generally paramount over any conflicting laws adopted by state governments. After McCulloch, the primary legal issues in this area concerned the scope of the Congress’ constitutional powers, and whether the states possess certain powers to the exclusion of the federal government, even if the Constitution does not explicitly limit them to the States.