Supreme Reflections on the First Monday in October

The Supreme Court will start consideration of cases in its new term on the first Monday in October.  A Federalist Society panel previewing the Supreme Court's new term expected that SCOTUS will have a diminished case-load during the 2016-2017 term as it awaits confirmation of  Associate Justice Antonin Scalia's replacement. It  is assumed that the Supreme Court is avoiding some controversial cases to avoid having a 4-4 tie, which does not establish precedent and upholds the Appeals Court ruling.

There are several schools of thought concerning the vacancy on the Supreme Court.  If Democrat Presidential nominee Hillary Clinton (D-NY) wins the election but if the Republicans retain control of the Senate, there is good reason to believe that Obama designee Merrick Garland will be confirmed during the Lame Duck session.  Although Senate Majority Leader Mitch McConnell (R-KY) claims that Lame Duck sessions are not appropriate for SCOTUS confirmations, the thinking from the GOP may well be to go with the Devil they know rather than one which they don't know.

Some Democrats believe if they win both the White House and the Senate, then Hillary would want to install her own (presumably more progressive pick).  But some optimistic institutionalists hold fast to the notion that Mrs. Clinton would abide by the process and still push forward her predecessor's choice.  Either way, in such a scenario, it would be expected that there would be a lengthy evaluation and vetting process to achieve Senatorial Advice and Consent, thus keeping the evenly divided court well into the term.

Ass. Justice Anthony Kennedy

A more philosophical question is what should be the role of the Supreme Court.  A common rallying cry in Presidential elections is control of the Supreme Court.  Justice Scalia's passing in February levels an ideologically fractured SCOTUS (four liberals, three conservatives and Ass. Justice Anthony Kennedy), but with indications that progressives are itching to be more activist. 

Chelsea Clinton has mentioned on the hustings that openings the Supreme Court will allow her mother to fundamentally redefine the parameters of the Second Amendment.  

Most likely there would be no outright repeal of this fundamental freedom given by God, but it would take a narrow reading of the organic law and assert that this right is limited to organized militias. This would effectively make it a dead letter, like the Tenth Amendment.

So instead of being final arbiters of cases, the Supreme Court would act like a super-legislature, only they are unelected (thus unaccountable) and there is virtually no way to upend their ukases.

Senator Ted Cruz (R-TX) while campaigning for President proposed having retention elections for the judiciary, as they do in Iowa.  That sounds more appealing on the campaign trail then it would be applicable in the Federal City. However, it does voice the frustration of many Americans who feel cut out of the governing process.  California twice approved referendums defining marriage (which was primarily a state issue), yet in Obergefell, the Supreme Court overturned the will of voters under a Right of Dignity interpretation of the Fourteenth Amendment and then expanded this right of same-sex marriage to all 50 states.

Two longer shot prospects not considered by judicial watchers are the possibility that Republican Presidential nominee Donald Trump (R-NY) might win and actually live by his promise to nominate conservative judicial candidates.  

The other way to remedy judicial tyranny would be limitations on Article III power.  While Congress can theoretically reign in lower courts, it is unlikely to do so. This would leave such reformation to application of an Article V Convention of States.  While the Article V safety valve for a Convention of States has been in place for 227 years, it has never been successfully invoked yet. But as more and more power is taken away from states yet they are saddled with the brunt of implementing dictates from the District of Calamity (sic), this may become a more feasible possibility. 

Quelling Qualms Over a Constitutional Convention of States

On the eve of the Mount Vernon Assembly, where nearly a hundred State Legislators gathered to discuss the framework for an Article V Convention of States, Phyllis Schlafly’s Eagle Forum issued an Action Alert decrying the effort.

The 89 year old Phyllis Schlafly has been a respected Republican constitutional scholar who was instrumental in stopping the ratification of the Equal Rights Amendment in the 1970s.  Schlafly has expressed skepticism  about the concept of a constitutional convention since the 1980s for fear of a “runaway convention.”  So  it is no surprise that her  Eagle Forum Action Alert would effectively telegraph a message of “hell no” to efforts at the Mount Vernon Assembly. 

 But a closer examination of the Action Alert reveals some specious arguments against what the Eagle Forum derides as a “Con Con”.

While it is true that there is not a tried and true tradition on the Article V Convention of States Amendment process, the Eagle Forum Action Alert did not seem to apply standard legal analysis to Article V.  The section reads:

“The Congress . . . on the Application of the Legislatures of two thirds of the several States shall call a Convention for proposing Amendments . . .” [their emphasis in bold]

This leads the Eagle Forum to conclude that states only have the power to ask Congress for a convention and that the grant is discretionary.   This analysis under-plays the importance of the word “shall”, which means that if 2/3rds of the states make a similar request, Congress is mandated to call a convention. 

Sen. Sam Ervin (R-NC) by Ann Martin 

As the convention of states route to the Article V amendment process is uncharted territories, it is proper to be concerned about Congress seeking to take control of a convention.  The Eagle Forum alludes to efforts by Senator Sam Ervin (D-NC) and Representative Henry Hyde (R-IL 6th) to shape a prospective constitutional convention.  The problem is that neither the “Ervin bill” nor any Hyde bill ever was enacted.  While the 1971 “Federal Constitutional Convention Procedures Act passed the Senate 84-0 in 1971 and also passed in 1973, the House refused to enact it. Moreover, Rep. Hyde was a minority member so his bills never made it to the floor.  

From a legislative history perspective, it is interesting that the “Ervin” bill modeled a Federal Constitutional Convention as being like a plenipotentiate joint session of Congress.  Ervin’s bill gave each state two at-large  as well as a delegate per Congressional district with one vote a piece. So one can appreciate the worry that Congress would highjack a constitutional convention by essentially appointing itself and dictate whatever terms the majority in Congress wills. But these bills were stillborn, so such a corrupted process has not been figuratively chiseled into stone. 

It is dubious if the Framers of the Constitution would have established a secondary track for amending the Constitution if a Constitutional Convention would be like a super-empowered legislature.  Prior to the Constitutional Convention in 1787, the American colonies had a long history of Interstate Congresses.  This rich legislative history points to long established precedents of how a Convention of States ought to proceed.

In addition, fretting that States can only petition Congress for an Assembly ignores the will emanating from the State Legislatures who would call such an Article V Convention of States.   This is why the initial Mount Vernon Assembly session was so important, as it sought to establish ground rules for such a convention, and shared ideas for states to keep a convention under control.

IN State Sen. David Long (R-IN 16th, Ft. Wayne)

Indiana State Senator David Long (R-IN 16th, Fort Wayne) championed a Faithful Delegate law to accompany a call for an Article V convention of states.  This Faithful Delegate law precluded the prospective Convention of State participants from acting like free agents.  The Delegate would do the bidding of the State which they represented or their vote would be void, the delegate would be substituted and the maverick delegate would be subject to a felony.  Such is the cost of being a constitutional “free agent” with a Faithful Delegate law, unlike the slap on the wrist for Faithless Delegates in the Electoral College. 

While there may be several models for a Constitutional Convention of States, it need not be designed like a super-legislature needing a super-majority to approve amendments.  It could well be structured like a contingent election when the Electoral College deadlocks.  In the case of a contingent election, each state delegate casts one vote and the deciding tally must meet a required threshold.  Colonial Congresses also had the one vote per State precedent.  The Mount Vernon Assembly focused on framework for a Convention of States rather than pressing potential amendment issues to build the base in case it comes to ripeness.

Another needless concern of the Eagle Forum Action Alert echoes earlier concerns about a runaway convention threatening the Bill of Rights and basic liberties enshrined to the current Constitution.  Such worriers should be placated that a Convention proposing Amendments can only licitly do what it is labeled “proposing Amendments” In order for such a Convention to send Amendments to States for ratification, it requires 2/3rds approval.  That is a high threshold, whether is it measured by individual delegates or single vote state methodology.  Even if such an Amendment made it past that mark, it would still need to garner 3/4ths approval of states through their legislatures or a truly never tried means of state conventions. 

The Eagle Forum is of the mind set that conservatives need to win elections.  This is a sentiment upon which all conservatives would concur.  However, it is dubious if just winning elections is the entire answer to problems in our polity  when the Administrative State can supercede the will of the people expressed by their legislature (e.g. Cap and Trade), autonomously expand its authority (e.g. FCC) as well as other unchecked abuses by the Executive Branch and the Judiciary.

It seems that on this issue, the Eagle Forum focuses on federal politics. However, reform of the Federal Government will only come from outside of the Federal City.  Article V provides a Constitutional mechanism for reforming our polity from outside of the District of Calamity (sic).  

In addition, conservatives power also lies within the State Legislatures, which could muster up to 30 States petitioning an Article V convention of states, which would create pressure on Congress to do something lest a Constitutional Convention be called. That is why the Mount Vernon Assembly took time to discuss process before proceeding.  Calling for an Article V Convention with strict instructions for delegates along with an Amendment like the Madison Coalition’s Regulation Freedom Amendment which could stand alone would set the stage for starting to restore the constitutional balance between Federal and State Governments.