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CONSTITUTIONAL ISSUES

Powers Reserved to the People

Amendment 10 of the U.S. 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." Since the Constitution does not mention direct democracy, it appears that it is constitutional that the People may have the right now to use direct democracy, and for the 49 States that authorize referendums and initiatives in their State Constitutions may have the explicit right to use them.

Guarantee Clause

Article IV, section 4 of the U.S. Constitution (the Guaranty or Guarantee Clause) states: "The United States shall guarantee to every state in this Union a republican form of government". If this can, even by convoluted and questionable argument, be interpreted to mean that a republican form of government denies any right of any direct democracy, then:

  1. Un-resolvable and unending argument could derail this planned Amendment.
  2. Moreover, the 49 states that have authorized the use of referendums and/or initiatives may have violated the U.S. Constitution.

There has been continuous argument about what the Founding Fathers intended by the wording of the Guarantee clause—the literature is voluminous. On one extreme, some people argue that the word republic should exclude any form of direct democracy, in effect saying that the U.S. is a republic and is not a democracy. At the other extreme, some people argue that Constitution gives the States a simple reassurance that there would be no new monarchy in whatever form. The context appears to support this interpretation by focusing on safety issues—i.e., it refers on protection against invasion and domestic violence. At that time, monarchy still had wide support and was a serious and feared possibility. George Washington himself squelched the movement to crown him by refusing to participate.

Precedence for use of initiatives in the U.S. dates from 1898, when South Dakota became the first state to incorporate them into its constitution. Since then, all of the States have incorporated into their constitutions some degree of direct democracy vote on statutes or constitutional issues, though Delaware is unique in that its Legislature may make constitutional changes without ratification by the electorate. Twenty-four States use various types of initiatives, and of these fourteen States use direct initiatives.

In 1912, PST&T v. Oregon challenged the constitutionality of the State use of initiatives and referendums. The Supreme Court dismissed for want of jurisdiction, in effect leaving the States to make their own initiatives and referendums decisions. If the Supreme Court had found definitively in favor of Oregon it would have settled the matter finally, but, since it did not, there is still some room for argument.

Today, republics around the world allow various degrees of direct legislation. They all consider themselves republics in which the citizens entitled to vote hold supreme power. There seems to be agreement that a degree of direct legislation is entirely compatible with, and healthy for, a republican form of government.

This planned nationwide Initiatives Amendment would undoubtedly raise this argument again. Since the argument probably has no conclusion, it is appropriate to resolve it finally. In the Planned Amendment, an article is included to clarify that both State and U.S. initiatives are consistent with a republican form of government. The States are the beneficiaries of the Guarantee, so they will, by ratifying this Amendment, have concurred and accepted this constitutional interpretation.

Legality of Initiatives

Amendment I grants the right to petition the Government for a redress of grievances: "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances". However, the Supreme Court has explained: "nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to ... petition require government policymakers to listen or respond to individuals’ communications on public issues." Moreover, though a signature "petition" may be used to qualify an Initiative, the word "petition" is used as a noun, whereas it has a different meaning as a verb in to "petition" for redress of grievances. Moreover, the People's right to pass Initiatives into law is a very different issue. In other words, Amendment I says nothing about the People's right to use Initiatives.

In 1912, the Supreme Court held that a challenge to the constitutionality of a State initiative was not subject to judicial review and dismissed the case for want of jurisdiction. In other words, the Constitution could not resolve the constitutionality of State initiatives and the issue was left in limbo. Nevertheless, this decision has allowed the use of State initiatives without further serious challenge. "Generally, it is recognized that a state government is republican if Congress seats its members" (Vile, p109). Consequently, direct democracy legislation has, by its adoption in State constitutions become virtually accepted de facto as part of the Constitution. However, neither the Constitution nor the Supreme Court have accepted or rejected initiatives or signature petitions, so the issue can be resurrected.

Thus, there is nothing in law that says initiatives, or the signature petitions that propose them, are or are not legal in the United States. A Constitutional Amendment is the only way to untie this knot.

Second Method Procedural Issues

The States on behalf of the People processes this Amendment. In general, their concern should be to get it through as easily as possible rather than attempt to resolve or make new constitutional ground. The following discussion addresses these second method procedural issues from this perspective.

Use of the Second method is not new. To date there have been over 400(Durbin p11) state applications requesting an Article V Convention according to congressional records—though FOAVC documented and counted 643 applications. Congressional records indicate that none reached the point where two-thirds of the States acted together—though FOAVC claim the two-thirds majority has been reached on four separate occasions. In four cases, Congress pre-empted what appeared to be a successful effort by proposing an Amendment before the States could gather the two-thirds required. In other cases the States failed by only one or two States (Durbin p11-12). Consequently, practice has not yet confirmed the Second Method's procedures.

The Second Method procedures were reviewed in "Amending the U.S. Constitution: by Congress or by Constitutional Convention, Congressional Research Service—Report for Congress" by Thomas M. Durbin, May 10, 1995. The CRS report uses the term "Constitutional Convention" whereas this Plan uses the term "Article V Convention" or the abbreviation "Convention"—the Glossary explains the difference.

The report concludes that the Constitution is silent in five areas. The report mentions a sixth area that should follow Congressional procedures. In addition, successful use of the Second Method requires consideration of seventh and eighth areas. If the Amendment ventures too far into these areas, they may need resolution by the Supreme Court. The eight areas are:

  1. Identicalness of the State Petitions

    According to the Congressional Research Service, "one of the problems...is whether the petitions or applications must be same and, if not, how similar or closely worded must they be in order to be valid and countable by Congress for the purpose of calling such a convention. Article V of the United States Constitution is silent about the subject matter...and about whether they should be identical or at least relate to a single specific subject matter in order to be counted." (Durbin p14) "Certain bills introduced in recent Congresses...would require that Congress consider the calling of a constitutional convention upon the receipt of applications from two-thirds or more of the states with respect to the “same subject” or the “same general subject.”" (Durbin p14)

    To avoid a detour into constitutional meaning and comply with congressional counting requirements, the States should coordinate in advance on the wording for the applications. Though Congress wants the applications to address the same subject, it has failed to define how this may be accomplished. Either the extent of coordination should fall short of a State Agreement or the States should seek the consent of Congress. Otherwise, the Congress might find that it has sufficient grounds to deny the States' applications because the States have violated the Constitution by entering into Agreement or Compact with another State without the consent of Congress under Article 1 Section 10 Clause 3.

    The safest approach will probably be for the first two or three states that support the Amendment to request congressional consent to a same-subject coordination process. The request should specify a time limit on the response. In the meantime, other States should proceed while avoiding any State Agreements or Compacts.

  2. Scope and Limitations of the Article V Convention

    "The delegates to the Constitutional Convention of 1787 set a precedent for an unlimited or general convention when they went beyond their mandate which was limited to proposing amendments to the Articles of Confederation and wrote a whole new constitution for governing the Country." (Durbin p15) However, "the constitutional convention procedures bills...in recent Congresses accept the concept of a limited constitutional convention since certain provisions require: (1) that a state specify in its application the nature of amendments that the convention may propose, (2) that the convention be limited to the subject matter specified in the applications, (3) that the delegates take an oath that they will not propose amendments outside the scope of the subject matter of the petitions, and (4) that Congress may disapprove and refuse to submit to the states for ratification any proposed amendments that are different in nature from the petitions from the state legislatures and concurrent resolutions calling the convention." (Durbin p17)

    Congress claims to fear a "runaway" Constitutional Convention where, in theory, the Convention could propose ill-advised Amendments. Therefore, the application should avoid this issue by committing the Convention to consider only the single question of the Citizens' Initiatives Amendment. It is not that a "runaway" Convention is even remotely likely, but rather that any appearance of encouraging a "runaway" Convention would provide ammunition to those wanting to prevent the Convention.

    In fact, the delegates to an Article V Convention will be acting under the federal function doctrine. As such, any State or Federal constraint cannot legally bind them, since they serve the Constitution, which transcends all governments. However, an oath must bind the delegates morally and ethically to follow their State's wishes. Moreover, the delegates know that three-fourths of the States must ratify any proposed Amendment, so ignoring their oaths cannot result in a change to the Constitution. An Article V Convention is a very sober and serious business, which with their State promises, should be more than sufficient to constrain a sufficient number of them to prevent any risk of a "runaway" convention. The risk of a runaway limited Article V Convention appears less than the risk of a runaway Congress, which have equal Constitutional authority to propose Amendments.

  3. Validity of Any Rescission of Petitions by State legislatures

    "The language of Article V gives little guidance whether a state could withdraw or rescind its application or petition for a constitutional convention once it has been passed by its legislature and submitted to Congress. There have been three rescissions of the applications for the calling of constitutional convention to propose a balanced budget amendment. Whether these rescissions are valid or not, it apparently is up to Congress to determine, and Congress has been reluctant to enact legislation clarifying the rescission issue." (Durbin p17) However, their validity was moot because the States never reached the necessary two-thirds majority and Congress did not have to rule on the matter.

    "...in Coleman v Miller the [Supreme] Court considered whether state could withdraw or rescind its prior rejection of a proposed amendment to the Constitution and held that the matter was a political question over which Congress had the ultimate authority to decide. Certain legislation in recent Congresses...would allow states to rescind their ratifications of a proposed amendment of a constitutional convention by the same process by which they ratified the proposed amendment up and until the time when valid ratifications by three-fourths of the states would occur." (Durbin p18)

    Therefore, to avoid this issue, the States should bind themselves not to rescind any application. Moreover, despite binding itself, it would still be possible for a single state to confuse the entire convention process by enacting a bill to rescind. Therefore, it will also be wise for more than 34 States to submit applications.

  4. Contemporaneousness of the Petitions

    "The Supreme Court in Dillon v. Gloss found that Congress had the power to set a time limit on a ratification of a constitutional amendment..." (Durbin p20) "The contemporaneous support arguments regarding applications from the states for a constitutional convention are based on the holdings of the Dillon and Coleman decisions which provided that Congress has the power to set time limits for ratification of a proposed amendment. It would seem logical to apply these same contemporaneous support arguments to state applications for constitutional conventions." (Durbin p20)

    However, "...many states submit applications to Congress for a constitutional convention to prod Congress into taking action...[consequently]...it may not be realistic to bind the states to their applications before the requisite number is reached." (Durbin p19) Moreover, "...applications from the states for a constitutional convention are also supposed to be contemporaneous..." (Durbin p19)

    "The constitutional convention procedures legislation [proposed] in past Congresses provide that applications for a constitutional convention are to remain effective for a period of seven calendar years after they are received by Congress. The seven-year limitation proposal for applications was apparently adopted from the seven-year ratification limitation for proposed constitutional amendments initiated in the 1920’s which has been the practice ever since." (Durbin p21)

    Therefore, the States should commit to a reasonable time during which the States will submit their applications. The applications need to be reasonably contemporaneous or Congress may have justification to invoke laches and not call the convention. In ratifying an amendment, all the states have a single well-defined issue to vote on. For this, Congress allows seven years.

    However, when applying for a convention on a "same subject" or "same general subject", each state will create a slightly different application to Congress. This process will require considerable ingenuity and is far more complex than an "up or down" vote on the final amendment.  Therefore, considerably more time should be allotted than for ratification. However, the time delay of 203 years that occurred in ratifying the 27th Amendment is unreasonable. A time of 21 years is somewhat arbitrary but entirely reasonable. It will allow the states to thoroughly evaluate their options. In the present case of this Plan, it allows enough time for one or more States to replace their signature petition qualification of state initiatives with a state boule and evaluate what they learn to apply it in the Convention.

    However, because the risk of a newly elected State legislature deciding to try to rescind an application (despite prior commitments not to rescind) is always present, it will be wise for the States to submit all applications within as short a period as possible.

  5. Proper Enactment and Submission of the Petitions by the State Legislatures

    "In states with bicameral legislatures, it would seem that an application from a state for a constitutional convention would have to be approved by both houses of the legislature...and require the presiding officer of each house of the state legislature to sign the exact text of the resolution..." (Durbin p21) In the past, only one of the two State houses approved some applications, which called into question the validity of the submission.

    "The constitutional convention procedure bills in recent Congresses...[avoid procedural problems by]...(1) requiring a state to address two copies of the application calling for a constitutional convention to the President of the Senate and the Speaker of the House of Representatives; (2) requiring applications to be sent within thirty days after the adoption by the legislature of the resolution; and (3) requiring that the copies bear the date on which the legislature adapted the resolution and be certified by the Secretary of State or some other official..." (Durbin p23)

    Therefore, all the States should coordinate so that applications will require approval of both their houses (except Nebraska, which has only one house) to avoid this issue.

  6. Conform with Article V Conventions Procedures Bills in Recent Congresses

    The States should conform to the constitutional conventions procedures bills in recent Congresses. E.g.:

    1. Send two copies of the application to the President of the Senate and the Speaker of the House of Representatives.

    2. Send the applications within thirty days of their adoption by the legislature.

    3. Certify the adoption and date adopted by the legislature’s Secretary of State or equivalent office.

    In addition, the States should designate their own recipient to whom a copy of all state application documents should be lodged and time-stamped for independent record keeping.

  7. Time Limit is Needed for Congress to Call a Convention

    The Constitution is silent on the timing of the Amendment processes. For example, Congress proposed the 27th Amendment in 1789 without a ratification time limit. The States took their time, and ratified it 203 years later in 1992. To prevent such unreasonable delay, Congress took the prerogative of setting a time limit, usually seven years, for the States to ratify an Amendment.

    Moreover, there must be a limit on extended congressional procrastination. Following the State ratification time-limit precedent established by Congress, the States should take the prerogative of defining in their application an appropriate time limit by which Congress shall call the Convention. At the Annapolis Convention, the States adopted a resolution on September 14, 1786 applying for a Convention and Congress called the Convention on February 21, 1787a time interval of under six months. Following this precedent, and recognizing the instant communications and fast travel available today, a period of one year after Congress has received the requisite number of State applications would seem more than adequate for a good-faith call. If Congress provokes a constitutional crisis by failing its constitutional obligation to call the Convention, the problem can still be resolved in various ways. For example:

    1. The States may ask the Supreme Court to find Congress in violation of the Constitution and the Court may issue a Court Order or to issue a writ of mandamus requiring congresspersons to call the Convention.

    2. The States or Congress may ask the Supreme Court to grant Congress a delay, but require congressional action within a new time certain.

    Presumably, sane heads will prevail to avoid such confrontation, perhaps by a "prodded" Congress reverting to the First Method or by compromising in advance on the timing and other issues. However, lengthy congressional procrastination would be dangerous and the States should not permit it.

  8. Congressional Opportunity to Undermine the Applications

    The States should presume that Congress will oppose the applications vigorously and will wish to undermine them. In anticipation of this, the applications should refer to the similarity of the States' applications and declare that any significant changes to the meaning will not be acceptable to the States.

    Congress might be obdurate. This possibility can be inferred from congressional deliberations (e.g., Committee on the Judiciary, H.J. RES. 84, March 25, 1998) on the Second Method, which show many believe Congress should propose an Amendment giving it a congressional veto of the States' applications by a two-thirds vote of each House. Others in Congress appear to believe that, under the "necessary and proper or basket clause", they already have a veto power by a majority vote in both Houses.

    However, it is clear that Congress "shall call a Convention" without any option, a view that Federalist 85 validates. A congressional failure to call a convention following a request by two-thirds of the States would be a violation of the Constitution no matter how Congress may wish to interpret its procedures. If Congress wishes to control the States' constitutional rights, the proper method would be by Constitutional Amendment not the "necessary and proper clause".

    In fact, the Constitution says nothing about congressional approval of a State application. Madison proclaimed that "The Constitution moreover equally enables the general and the state governments to originate the amendment…" While a congressional veto power may or may not be a good idea, it is not part of the Constitution at this time.

    If the People have approved referendums in a large number of the States, the desire of the People will be unquestionable. The People ordained and established this Constitution and have the supreme right to alter government. This unity of the States and the People will create great constitutional authority in any dispute with Congress.

    States should advise Congress that, if Congress changes the wording or vetoes their application, they would petition the Supreme Court to issue a writ of mandamus or equal and to hold Congress and its members in contempt. Presumably, as in item seven above, sane heads will prevail to avoid such confrontation.

Ratification by Convention

Congress has always chosen ratification by the legislatures except for the 21st Amendment (repeal of prohibition) for which Congress chose ratification by convention explicitly in the Amendment text. However, this single case is sufficient to establish precedents that should suffice in the event that Congress proposes ratification by convention for the planned Amendment.

A state convention differs from the state legislature in that it is usually an entirely separate body from the legislature. This introduces a different political dynamic into the amendment process. The reason for choosing ratification by convention in the 21st Amendment is that the people of the conventions, which would typically be average citizens, would be less likely to bow to political pressure to reject the amendment than elected officials would be. If Congress were to preempt an Article V Convention and sincerely wished for ratification of the Planned Amendment, then it may again choose ratification by convention.

Federal Function Doctrine

According to the Congressional Research Service, 1995 (Durbin) "...the Supreme Court decision of Leser v. Garnett ..." found that “…the function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State.” And, when a state legislature decides to ratify a constitutional amendment, that decision, under the federal function doctrine, would transcend any limitations that the people of the state would seek to impose." (Durbin p24)

Presumably, if Congress proposing an Amendment is a federal function, then an Article V Convention proposing an Amendment is also a federal function. Thus, a State direct initiative passing a State statute or State Constitutional Amendment supporting this Planned U.S. Constitutional Amendment could require the State Legislature to take all necessary actions related to the application to Congress for an Article V Convention until Congress calls a Convention. However, (U.S. Supreme Court "Hawke V. Smith" 1920) a State referendum (and presumably also an initiative) could probably not require a State Legislature to propose or ratify the U.S. Constitutional Amendment, because the State Legislature would be fulfilling a Federal Function transcending a State Initiative. In other words, based on these Supreme Court rulings, those State persons attending the Article V Convention to propose the Amendment, and those voting to ratify the Amendment, must act as a federal function and it appears that they are not legally bound to follow the intent of a State initiative. On the other hand, they would presumably feel morally and ethically bound to follow the State initiative.

Again, per the Congressional Research Service, 1995 (Durbin): Since the “Leser” decision, the so-called “federal function doctrine” has been used to justify any role that Congress had and would have under some form of the proposed Article V Convention procedures legislation. Under this doctrine, Congress would have those functions which are not specifically assigned to the States under Article V…the Supremacy Clause of Article VI would determine that federal legislation provisions would supersede inconsistent state acts. While the States, the courts and the convention itself would appear to be unable to regulate the application and convention process, Congress, it would seem, would be the appropriate governmental branch to specify the procedures of an Article V Convention that were left unresolved by Article V.

Though Congress has for over 200 years failed to specify the procedures of an Article V Convention that were left unresolved by Article V, it may enact something at the last moment and cause enough difficulties for the States that the issue will end up in the Supreme Court. Even worse, the Court may decide the issue to be beyond the Court's jurisdiction—as it did regarding the legality of State initiatives. This might well provoke a constitutional crisis that all parties will want to avoid—Congressional tardiness will be a meaty subject for the media. Those representatives responsible for the mess would suffer the People's wrath at the next election when the People could elect the new representatives to resolve the issues.

However, none of these issues can do more than slow the ratification of the planned Amendment; ultimately, they cannot prevent it.

Electorate Voting Majorities Needed to Approve Direct Initiatives

The Planned Amendment takes the position that the Congressional voting majorities already in the Constitution are adequate to the task. Any detour from this would create endless argument.

In effect, the Electorate’s vote on a Direct Initiative will be as if the voters are emulating elections for each seat in the House of Representatives and the Senate, where each seat is obligated to vote on the ballot Initiative in exactly the way that the People wish. In addition, as a precaution against statistical anomalies that sometimes happen in voting, it is also required that all Direct Initiatives have a nationwide majority. Thus, the following requirements to replicate Congressional voting are in the Planned Amendment:

  1. In Both Cases

    All Direct Initiatives shall require a nationwide majority

  2. Normal Direct Initiative

    This corresponds with a normal majority vote passed in both Houses of Congress. It requires a concurrent majority vote by the Electorate:

    1. in a majority of the Congressional districts, and

    2. in a majority of the States

  3. Special Issue Direct Initiative

    This corresponds with a two-thirds supermajority vote passed in both Houses of Congress. It requires a concurrent majority vote by the Electorate:

    1. in a two-thirds supermajority of the Congressional districts, and

    2. in a two-thirds supermajority of the States

The state votes clearly protect state rights. The Congressional district votes should help to protect minority and local rights. Unfortunately, in some of the districts, gerrymandering has made the voting effects on minority rights unclear.

In almost all states, a plurality of voters elects a congressperson. If more than two candidates are running, the winner can win with less than a majority of the votes cast. However, the basis of the "emulation" is a full majority of the votes cast, which in an election is always sufficient no matter how many or few candidates are running. Moreover, though Congress passes legislation based on a simple majority, the "emulation" of all seats creates the somewhat higher standard of an absolute majority—i.e., no absent or abstaining members.

This requirement of a concurrent majority vote is similar to that used for initiatives in Switzerland. There, an initiative needs a "double majority" to pass—i.e., a majority of the people as a whole and in a majority of the cantons.

Selection of a Name for a Nationwide Initiative

The question of what to call an initiative is not trivial. The name most often identified with a nationwide initiative is "National". In many other countries, use of the word national is automatic because they have had centralized government for a long time.

However, U.S. Constitution mentions neither "National" nor "Federal". Those concerned with State power tend to favor "Federal", while those concerned with centralized power tend to favor "National". James Madison declared that "The proposed Constitution is, in strictness, neither a national nor a federal constitution; but a composition of both." The issue of State vs. National powers helped ignite the civil war. Even today, the injudicious use of the words can lead to heated debate.

This planned constitutional Amendment remains clear of any "National" vs. "Federal" issues by using the name "United States", which is widely used in the Constitution. To make it clear that a vote is of the entire country, this site uses the lower-case adjective "nationwide" where appropriate.

Selection of a Name for the Assembly

The Plan could use the term Voter Assembly since all Members of the Assembly are eligible to vote. On the other hand, all Members are Citizens, so the term Citizens' Assembly is also appropriate. Both titles are reasonably good, but neither is precise:

  1. Voters Assembly In fact, about 22 percent of those eligible to vote have not registered to vote, but can become Members. In other words, the term Voters Assembly is a superset of the actual voters.

  2. Citizens' Assembly In this case, about 28 percent of U.S. Citizens are ineligible to vote or become Members because they are under 18 years of age. In other words, the Citizens' Assembly is a subset of the actual Citizens.

Internet searches for "Voter Assembly" reveal that a great variety of organizations, including many religious groups, use this term. On the other hand, a search for "Citizens' Assembly" shows many political groups. Thus, it seems that the Citizens' Assembly title will be more effective at helping the public find the information they want in today's Internet age. Moreover, the title "Citizens' Assembly" has a constitutional ring to it. However, there are many different types of Citizens' Assemblies. For clarity, a full title such as "U.S. Citizens' Initiatives Assembly" is necessary but leads to excessive verbiage. Also, the acronym "USCIA" refers to the United States Central Intelligence Agency.

Our word democracy comes from the Greek words dēmos "people" and kratos "rule". Following that tradition, the Greek word Boule, meaning roughly "the will after deliberation", is borrowed from the Greek and normally used here in place of "U.S. Citizens' Initiatives Assembly" because it is brief, easy to remember, and it cannot be confused with other types of citizens' assemblies.

All three-letter and four-letter acronyms are already registered and are no longer available as Internet domain names. The name "Boule of the United States" has the convenient acronym BOTUS. It is compatible other federal government acronyms, which are used internationally though probably less in the U.S.:

BOTUS – Boule of the United States
COTUS – Constitution of the United States
HOROTUS – House of Representatives of the United States
POTUS – President of the United States
SOTUS – Senate of the United States
SCOTUS – Supreme Court of the United States

Consequently, http://www.BOLUS.org has been registered and is in use along with http://www.InitiativesAmendment.org and http://www.CUSDI.org. Today, they all point to the same web site but may be separated later if appropriate for organizational clarity and convenience.

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 November 07, 2013