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Wednesday, September 18, 2019

Temecula Constitution Class: Amendments, Federal Supremacy

Temecula Constitution Class, Wednesdays 6:00 pm
28120 Jefferson Avenue, Temecula, CA
Riverside County Republican Party Headquarters

Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
 
 
 
 
Lesson 10
Amendments and Conventions
 
Article V is the section in the Constitution that provides the people and the States the opportunity to change the law of the land if needed by establishing the amendment process. Originally, only the States were going to be able to propose amendments. On the second to the last day of the Constitutional Convention, the Founding Fathers added as an afterthought to allow the Congress to propose amendments as well. The amendment process is the only process through which the Constitution may be altered.
 
Amendments, according to Article V, may be proposed by either two-thirds of both Houses of the United States Congress, or by a national convention of States. Amendments must then be ratified by approval of three-fourths of the States either through their legislatures, or through ratifying conventions.
 
Amendments proposed by a national convention is a process known as an Article V. Convention.
 
Current opinion regarding an Article V. Convention varies. Some people and groups have warned against such a convention, fearing a runaway convention that could be used to re-write the Constitution. The Constitution does not allow for a runaway convention. In an Article V. Convention, only amendments may be proposed.
 
The call for an Article V. Convention is nothing new. Forty-Nine States have called for it, many of those calls beginning longer than over a 100 years ago. Over 700 applications have been made. The convention has never taken place because the Congress will not set a time and place (the only federal duty in an Article V. Convention), for fear of the people proposing amendments, and the States ratifying them, that would limit the powers of the federal government. Centralized systems do not like it when the individual mind gets involved, and demands change.
 
There are three kinds of conventions. A con-con, which is a Constitutional Convention, and there was only one, held back in 1787, and there should only be one in our history. In addition to the con-con, and the Article V. Convention, is a kind of convention called Republic Review. A Republic Review may be used to audit the federal government, determine what is unconstitutional, and then form a plan of action to alter the federal government so that it falls in line with the principles of the United States Constitution. An Article V. Convention, or the States working together through nullification, could be the result of a Republic Review. The strategy to convene a Republic Review convention lies primarily with We the People.
 
Amendments, no matter how they are proposed, require three-quarters approval from the States. This approval process is called "ratification." Ratification is the failsafe, according to Alexander Hamilton in his Federalist 85, against conventions that may be used to rewrite the Constitution. Any change to the Constitution is possible, as prescribed by Article V, as long as the amendment is capable of receiving three-quarters of the States' ratification votes.
 
The only exception to any amendment being possible is addressed at the end of Article V. According to the Constitution, no amendment, without the consent of the State in question, may deprive a State of equal suffrage in the Senate. This testifies to the importance, in the minds of the framers, to the need for the United States Senate to remain unchanged, with the Senators being appointed by the State legislatures.
 
Since the Constitution is a document that contains express powers for the federal government, granted by the States, the only way to change or add authorities is through the amendment process, with State approval. When it is understood that the original authorities granted to the federal government were granted to the central government by the States, it is appropriate that it takes three-quarters of the States to ratify an amendment. When Congress proposes an amendment, it is literally a case of the federal government asking for permission of the States to have a new authority, and approval by the States requires three-quarters agreement.
 
 
Terms:
 
Article V. Convention - A convention for the proposal of constitutional amendments applied for by the States and called by Congress.
 
Express Powers - Powers granted to the federal government by enumerated authorities expressly granted in the United States Constitution.
 
Republic Review - A convention of delegates representing the several States in order to audit the laws, actions, and composure of the United States federal government; a review of unconstitutional characteristics of the federal government based on the amendment ratification concept that if it takes three-quarters of the States to ratify an amendment, a quarter (plus one) of the States determining a law, action or department of the federal government to be unconstitutional allows the States to nullify the item.
 
Questions for Discussion:
1. What two sources may propose amendments?
2. Why does it require the States to ratify proposed amendments?
3. How is an Article V. Convention an important part of restraining the federal government?
Resources:
 
Friends of the Article V. Convention: http://foavc.com/
 
G. R. Mobley, We the People: Whose Constitution is it Anyway?;
Hobart, Washington: Mobius Strip Press (2013)
 
G. R. Mobley, We the People: The Strategy to Convene a Convention for
Republic Review; Hobart, Washington: Mobius Strip Press
(2014)
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Madison's Notes Constitutional Convention, Avalon Project, Yale
University: http://avalon.law.yale.edu/subject_menus/debcont.asp
 
Mark R. Levin, The Liberty Amendments: Restoring the American
Republic; New York: Threshold Editions, a division of Simon & Schuster (2013)
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Four - Article I I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)
 
 
 
 
Copyright: Douglas V. Gibbs, 2015
 
 
---------------------------------------

 
Lesson 11
 
Debt and Supremacy
 
            Prior Debt
 
Article VI begins with "All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation."
 
The first clause of Article VI legally transfers all debts and engagements under the Articles of Confederation into the new government. This is not only the debts and engagements by the United States Government under the Articles of Confederation, but also includes all debts of each of the several States. After ratification of the Constitution, each and every State would be debt free, and all debt would be held by the federal government. This condition, according to the Constitution, would be the last time the States would legally be in debt. In Article I, Section 10, the Constitution forbids the States from issuing bills of credit.
 
Alexander Hamilton, the first Treasury Secretary, suggested that the United States should remain in perpetual debt. Maintaining a perpetual debt, he explained, would be a mechanism that could assist in holding together the union, since States would be unlikely to secede when they are responsible for a part of the national debt.
 
Thomas Jefferson disagreed with Hamilton. He recognized the necessity to maintain the ability to borrow, and the need for credit, but found a national debt to be a potentially dangerous proposition.
 
"Though much an enemy to the system of borrowing, yet I feel strongly the necessity of preserving the power to borrow. Without this, we might be overwhelmed by another nation, merely by the force of its credit." -- Thomas Jefferson to the Commissioners of the Treasury, 1788.
 
"I am anxious about everything which may affect our credit. My wish would be, to possess it in the highest degree, but to use it little. Were we without credit, we might be crushed by a nation of much inferior resources, but possessing higher credit." -- Thomas Jefferson to George Washington, 1788.
 
"Though I am an enemy to the using our credit but under absolute necessity, yet the possessing a good credit I consider as indispensable in the present system of carrying on war. The existence of a nation having no credit is always precarious." -- Thomas Jefferson to James Madison, 1788.
 
"I wish it were possible to obtain a single amendment to our Constitution. I would be willing to depend on that alone for the reduction of the administration of our government; I mean an additional article taking from the Federal Government the power of borrowing. I now deny their power of making paper money or anything else a legal tender. I know that to pay all proper expenses within the year would, in case of war, be hard on us. But not so hard as ten wars instead of one. For wars could be reduced in that proportion; besides that the State governments would be free to lend their credit in borrowing quotas." -- Thomas Jefferson to John Taylor, 1798.
 
"I sincerely believe... that the principle of spending money to be paid by posterity under the name of funding is but swindling futurity on a large scale." -- Thomas Jefferson to John Taylor, 1816.
 
"If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks...will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered.... The issuing power should be taken from the banks and restored to the people, to whom it properly belongs." -- Thomas Jefferson in the debate over the Re-charter of the Bank Bill (1809)
 
"I believe that banking institutions are more dangerous to our liberties than standing armies." -- Thomas Jefferson
 
"... The modern theory of the perpetuation of debt has drenched the earth with blood, and crushed its inhabitants under burdens ever accumulating." -- Thomas Jefferson
 
 
 
            The Supremacy Clause
 
Article VI, Clause 2: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
 
Perhaps one of the most misunderstood and misapplied clauses of the U.S. Constitution, the Supremacy Clause has been used in line with the concept of Federal Supremacy. Federal Supremacy is a concept our first Chief Justice, John Jay, believed in. During his stint on the Supreme Court Jay worked feverously to establish broader powers for the courts, and to transform the federal government into a national government. He quit the Supreme Court after failing, pursuing an opportunity to be governor of New York.
 
Chief Justice John Marshall spent his 36 years on the Supreme Court attempting to establish, and expand federal supremacy, and largely succeeded. Marshall is embraced by statists as the one to develop federal supremacy in his opinion of the Mcculloch v. Maryland case in 1819 where the Court invalidated a Maryland law that taxed all banks in the State, including a branch of Alexander Hamilton's creation, the national Bank of the United States. Marshall held that although none of the enumerated powers of Congress explicitly authorized the incorporation of the national bank, the Necessary and Proper Clause provided the basis for Congress's action. Marshall concluded that "the government of the Union, though limited in its power, is supreme within its sphere of action."
 
During the 1930s, under Franklin Delano Roosevelt, the Court invoked the Supremacy Clause to give the federal government broader national power. The federal government cannot involuntarily be subjected to the laws of any state, they proclaimed, and is therefore supreme in all laws and actions.
 
The legally, and commonly, accepted definition, as a result of the courts and the persistence of, regarding the Supremacy Clause, is that all federal laws supersede all State laws.
 
The commonly understood definition of the Supremacy Clause is in error. To understand the true meaning of this clause, one must pay close attention to the language used.
 
If the federal government has a law on the books, and the law was made under the authorities granted by the States in the United States Constitution, and a state, or city, passes a law that contradicts that constitutional federal law, the federal government's law is supreme based on The Supremacy Clause. However, if the federal law is unconstitutional because it was made outside constitutional authority, it is an illegal law, and therefore is not supreme over similar State laws.
 
An example of the federal government acting upon the assumption that all federal law is supreme over State law is when the medical marijuana laws emerged in California in 1996 after the passage of Proposition 215. Though I do not necessarily agree with the legalization of the casual recreational use of marijuana, and believe "weed" should be heavily regulated like any other pharmaceutical drug if being used for medicinal purposes, the actual constitutional legality of the issue illustrates my point quite well.
 
California's law legalizing marijuana for medicinal purposes was contrary to all federal law that identified marijuana as being illegal in all applications. Using the commonly accepted authority of the federal government based on their definition of the Supremacy Clause, federal agents began raiding and shutting down medical marijuana labs in California. However, there is no place in the U.S. Constitution that gives the federal government the authority to regulate drugs, nor has there been an amendment passed to grant that authority to the federal government. From a constitutional point of view, then, the raids on medical Marijuana labs in California were unconstitutional actions by the federal government.
 
The Supremacy Clause applies only to federal laws that are constitutionally authorized. Therefore, federal drug laws are unconstitutional. As a result, California's medical marijuana laws are constitutional because they are not contrary to any constitutionally authorized federal laws.
 
Language plays an important part in the Constitution, and The Supremacy Clause is no different. The clause indicates that State laws cannot be contrary to constitutionally authorized federal laws. For example, Article I, Section 8, Clause 4 states that it is the job of the U.S. Congress to establish an uniform rule of naturalization. The word "uniform" means that the rules for naturalization must apply to all immigrants, and to all states, in the same way. If a state was to then pass a law that granted citizenship through the naturalization process in a way not consistent with federal law, the State would be guilty of violating the Supremacy Clause.
 
In the case of Arizona's immigration law, S.B. 1070 in 2010, the argument by the federal government that Arizona's law is contrary to federal law was an erroneous argument. Assuming, for just a moment, that the federal government has complete authority over immigration (which is not true since immigration is one of those issues in which the federal government and the States have concurrent powers), Arizona's law would then need to be identical to federal law. And in most ways, the Arizona law was similar to federal immigration law. The only difference was that Arizona's law disallowed racial profiling.
 
The federal government's argument when the United States Department of Justice filed a lawsuit against the state of Arizona in the U.S. District Court for the District of Arizona on July 6, 2010, was that the law must be declared invalid because it interfered with the immigration regulations exclusively vested in the federal government. Therefore, a State cannot enforce immigrations laws if the federal government decides not to, nor can a State pass law regarding an issue that the federal government has sole authority over. In this way, Arizona was considered to be acting "contrary" to the federal government.
 
Article I, Section 9, Clause 1, and Article I, Section 10 in the final clause, provides that States hold concurrent authorities regarding immigration, and securing the border. Therefore, the federal government's argument that they held sole authority over the issue was in error.
 
Eric Holder, when he filed the lawsuit in the U.S. District Court also acted unconstitutionally because in Article III, Section 2, the Constitution states that all cases "in which a State shall be Party, the supreme Court shall have original Jurisdiction." Since the case was the United States v. Arizona, the case, constitutionally, could only be filed with the United States Supreme Court.
 
The language in Article VI, Clause 2 reveals clearly that only laws made under the authorities granted to the federal government have supremacy. Article VI, Clause 2 reads, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
 
The clause establishes three things as being potentially the supreme law of the land. First, "This Constitution." Second, "Laws of the United States which shall be made in pursuance thereof." And Third, all Treaties made, or which shall be made."
 
"This Constitution" is the supreme law of the land. Understanding that first part of the clause is easy.
 
The second one has a condition attached to it. "Laws of the United States which shall be made in pursuance thereof."
 
In pursuance thereof? In pursuance of what?
 
Of "This Constitution."
 
Therefore, if a law is not made "in pursuance" of "This Constitution," then the law is an illegal law, and cannot possibly be the supreme law of the land. Unconstitutional laws are not the supreme law of the land, which reveals that all federal laws are not the supreme law of the land. Illegal law made outside the authorities granted by the Constitution of the United States cannot legally be the supreme law of the land.
 
After "pursuance thereof" in the clause, a semicolon is used. The semicolon separates "Treaties" from the "Laws of the United States." The separation by the semicolon means that "in pursuance thereof" applies to "Laws of the United States," but not to "Treaties." This means that treaties not in line with the principles of the Constitution can be accepted as the supreme law of the land.
 
The concern over treaties was not great, because the Senate was the voice of the States, and the States are the final arbiters of the Constitution. If the States are willing to ratify what would be considered an unconstitutional treaty, they must be given the chance. Therefore, "in pursuance thereof" does not apply to treaties.
 
The importance of this part of the Supremacy Clause revealed itself during Jefferson's Louisiana Purchase in 1803. As discussed in Article I, Section 8, Clause 17, the federal government does not have the authority to buy or own land unless it is purchased from a State, by the consent of the State legislature, for the purpose of needful buildings. The details of the Louisiana Purchase did not fit Article I, Section 8, Clause 17's requirement. To get around that, President Thomas Jefferson negotiated the Louisiana Purchase with France through treaties. Since treaties were ratified by the States through the Senate, it kept the States involved in the process, and made the purchase the law of the land even though technically it was not constitutional.
 
            Oath or Affirmation to Support This Constitution
 
Article VI, Clause 3 indicates that all elected officials are bound to support the Constitution by oath or affirmation. An oath is to God, and an affirmation is not a sworn oath to God. This was offered because the Founding Fathers recognized that not everyone believed in God, and that there were some religions that believed swearing to God to be a sin.
 
The final clause of Article VI also states that there shall be no religious test to serve. This was not the case inside the States. This was a provision only required of the federal government. At the State level, established churches, and religious tests were the norm. The Danbury Baptists in Connecticut appealed to President Jefferson because they felt they were being mistreated by the Puritans. The Baptists felt they were being treated like second class citizens in a State dominated by the Puritan Church. Jefferson replied that the federal government could not help them. It was a State issue.
 
Alexis de Tocqueville observed when he visited the United Sates in the 1830s that religious freedom had truly come to The States. In America, the politicians prayed, and the pastors preached politics, yet neither controlled the other. He concluded America's greatness was a result of the good in America, coining the term American Exceptionalism.
 
Terms:
Concurrent Powers - Government powers shared by the State and the federal government.
 
Exceptionalism - The condition of being exceptional or unique; the theory or belief that something, especially a nation, does not conform to a pattern or norm.
 
National Bank - In the United States, a bank chartered by the federal government authorized to issue notes that serve as currency; a bank owned and administered by the government, as in some European countries.
 
Oath - A solemn sworn declaration, or promise, to a deity (God), to fulfill a pledge.
 
Supremacy Clause - Clause in the Constitution that indicates that all federal laws, and treaties, passed under the authorities granted by the Constitution, are the Supreme Law of the Land
 
Questions for Discussion:
1. What was the common opinion by the Founding Fathers regarding a perpetual national debt?
 
2. What limitations on national debt did the Framers of the United States Constitution consider?
 
3. It is a common belief in today's society that all federal laws are supreme to all State and municipal laws. Why is this belief wrong?
 
4. How does the Supremacy Clause enable Nullification?
 
5. Why does the Constitution offer the opportunity for both oaths, and affirmations?
 
Resources:
John Taylor, New Views of the Constitution of the United States; Washington City: By Way and Gideon
(1823)
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S.
Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Madison's Notes Constitutional Convention, Avalon Project, Yale
University: http://avalon.law.yale.edu/subject_menus/debcont.asp
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Four - Article I I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)
 
Sam Cornell, The Other Founders: Anti-Federalism and the
Dissenting Tradition in America, 1788-1828; Chapel Hill: University of North Carolina Press (1999)
 
Copyright: Douglas V. Gibbs, 2015
 
 

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