No Class Wednesday October 5

I'm heading off to St. Louis next week to speak at SLU and Wash U law schools.

For next Thursday's class, lets be prepared to discuss two short assignments--Nos. 9 & 10.

The Tea Party's Constitution

I. Article V and My Proposed Amended Art. V

                                    Art. 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.

                             My Proposed Amended Art. V

1. The words and phrases of this Constitution shall be interpreted according to their ordinary meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations. [I borrowed most of this language from Randy Barnett’s proposed federalism amendment]

2.  Whenever a majority of either House of Congress shall deem it necessary, such House shall propose Amendments to this Constitution, 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.

3. Whenever the Legislatures of any five of the several States shall deem it necessary, such Legislatures shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, when ratified by the Legislatures of three-fourths of the several States.

4. Congress, on the application of the legislatures of two thirds of the several States, 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.

5. Anything to the contrary herein notwithstanding, no state, without its consent, shall be deprived of its equal suffrage in the Senate.

II. Constitutional Convention ("Con Con")

The second method created by Article V for amending the Constitution provides that Congress “on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” Again, any amendments proposed by the Constitutional Convention will become law only “when ratified by the legislatures of three fourths of the several states.” So, to be clear, under this second method, four separate actions are required in order to amend the Constitution:

First, two-thirds of the states must apply to Congress for a constitutional convention.

Second, Congress, at least in theory, must—shall—call a constitutional convention.

Third, the constitutional convention must then propose certain constitutional amendments.

And, fourth, the proposed amendments must then be ratified “by the legislatures of three fourths of the several states.”

 III. Some Tea Party Proposals

Prof. Barnett's proposed federalism amendments include:

--a proposal to replace the income, gift and estate taxes with a uniform “fair” tax on consumption; 

--a proposal to restrict the commerce and spending powers of Congress in order to restore them to what Randy believes is their original understanding; 

--a balanced budget amendment with a Presidential line item veto; 

--a term limits amendment for Congress

--repeal of Seventeenth Amendment, which provides for the direct election of United States Senators instead of, as before the Seventeenth, appointment by state legislatures

IV. The "Repeal Amendment"

My primary focus: Prof. Barnett’s “Repeal Amendment,” which I believe may well be able to get political traction. After a series of meetings between Prof. Barnett and Tea Party activists, they decided to go forward with the following proposed amendment:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose and that particularly describe the same provision or provisions of law or regulation to be repealed.

V. Madison and Federalist No. 45

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

VI.  Commerce Clause and tenth Amendment

Art. I Section 8.

The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Amendment X

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.

The Tea Party's Constitution

I will be giving a Law School Colloquia Presentation next Wednesday Sept. 28th (at Noon in Room 113) on "The Tea Party's Constitution." This is just a sexy title for a proposal, first made by Prof. Randy Barnett of Georgetown Law, to call a constitutional convention for the purpose of proposing constitutional amendments designed to limit the power of the Federal Government and to increase the powers retained by the States and the People.

This presentation is open to everyone, so if you are interested in discussing the possibility of a constitutional convention please come.

GOP's Pledge To America

Consider this pledge for Congress: "Require every bill to be certified as constitutional before it is voted on."

And now consider this "analysis" from the MSN web site:

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary. 

Is it an "encroachment on the judiciary" for Congress to consider, for example, whether proposed legislation exceeds its own power under the Commerce Clause? Even if Congress takes a more narrow view of its own power?

Class Cancelled

We will not have class next Wednesday Sept. 21, 2011.

This is the second of our seven required class cancellations.

"Get-it-rightism"

I hope you enjoyed getting an opportunity to talk with Justice Thomas.

It was one of the highlights of my 32 years here.

My take away from his noon chat was the label he uses to describe his search for the textual meaning of the Constitution--"get-it-rightism!"

I love that phrase.

Next Week

No Class on Wed (Sept. 14) and Thursday (Sept. 15).

However, we will meet with Justice Thomas and Prof. Berger's class at 10:30-11:30 am on Thursday Sept. 15 in the Auditorium. Please be thinking of some questions you would like to ask Justice Thomas.

Justice Thomas Article

Here is a great recent article about Justice Thomas from the New Yorker.

He will be meeting with our class soon, and this article is worth a quick read.

U.S. Const. Art. V

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.