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Goldwater page 136

Reply by Mangus Colorado, Moderator on July 21, 2012 at 10:55am
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The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns Amendment Ratification Conventions.Article 5 details a couple of ways that an amendment to the Constitution can be proposed - either through Congress or through a Constitutional Convention. However an amendment is proposed, the final step is ratification. Two methods for ratification are provided - by three-fourths of the state legislatures or by three-fourths of the states in convention. This topic concerns the latter of these two.
Ratification Conventions
The normal course of events, when an amendment to the Constitution has been desired by the people, is for Congress to pass the amendment and for the state legislatures to then ratify. Congressional proposal of the amendment is by a two-thirds majority vote in both houses. State ratification is by three-fourths majority.
The Constitution does provide for one other way to ratify: by convention. 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 only time that conventions have been used was in the case of the 21st Amendment, which overturned the 18th Amendment. The 18th abolished alcohol manufacture or sales on a national scale. The 21st repealed the 18th, stating instead that each state shall have the ability to set its own laws regarding liquor. The text of the 21st specifically stated that it would have to be ratified by conventions held in each state:
3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Why specify conventions over legislatures, as every other amendment had been ratified up to then? The thought was 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. Note that the Supreme Court has ruled that a popular referendum is not a substitute for either the legislature nor a convention, nor can a referendum approve of or disapprove of the legislature's or a convention's decision on an amendment.
The Vermont Example
All of that out of the way, how does a ratification convention work? In the legislature, the method is simple: propose a bill of ratification and vote it up or down. But a convention gets more complicated because it is by necessity separate and different from the legislature. For this discussion, I will use the convention method of Vermont as a model (17 VSC 1811 - 1825 ).
The first step is proposal. Once Congress has proposed an amendment that is to be approved by convention, the governor has 60 days to call for an election of delegates to the convention, and the setting of a date for those elections. Note that the Vermont code does not contemplate the calling of ratifying conventions from a national amendment convention, though the same procedures would likely be followed.
Fourteen persons are elected to be members of the convention. They are elected at large, meaning that each voter would cast votes for fourteen people, with the top fourteen vote-getters being elected. The election must take place from three to twelve months after the governor's call. The convention must take place 20 to 30 days after the election. The convention itself is held in the Senate chamber in the state capital.
The candidates themselves are selected from a list of 28 possible Vermont citizens. All 28 candidates are selected by the governor, lieutenant governor, and speaker of the house. The persons selected must agree to be placed on the ballot - 14 of whom are opposed to ratification, 14 of whom are in favor. The ballots are to be plainly marked so that voters can decide based on the candidate's stand on the issue, or on name recognition. The state has 14 counties - each county is to have one "pro" and one "con" candidate. Voters can vote for all "For" or all "Against," or any combination.
The elected delegates meet on the appointed date, with the majority of those elected being a quorum. The code does not detail how the convention is to conduct its business aside from the fact that there will be a chairman and that the secretary of state will be the secretary of the convention, and those two persons will certify the results of the convention's vote. The convention might only last 15 minutes, or it could drag out for several days for debate. However long the convention takes, delegates are provided a stipend of $10.00 and reimbursement of actual expenses.
The New Mexico and Florida Examples
For comparison, the rules of New Mexico were randomly chosen. The procedure in New Mexico is vastly different (reference section 1-18-1  of the New Mexico Code). To start, the governor has only 10 days to call a convention, which seems short until the members of the convention are mentioned. Each member of the state legislature is a member of the convention, and the convention is held in the House chamber. No special election is called to appoint delegates. The code does effectively limit the convention to three days by refusing to pay the delegates for more than three days of work.
Lastly, the rule of Florida were chosen for comparison. The Florida rules are in 9 FSC 107.01 - 107.11 . In Florida, the convention is made up of 67 members. The governor has 45 days to call an election to be held from five to ten months after Congress issues the proposed amendment. Anyone can apply to be a member of the convention, with the state qualifications for the state House being used as an eligibility test. Candidates can officially declare that they are for or against the amendment, or apply unannounced. An application fee of $25 and a 500-name petition are also required. On the ballots, candidates are listed in three categories: for, against, and undecided. There is also provision for write-in candidates. The vote is at large, meaning that the 67 top vote-getters in the state win the 67 seats in the convention. The meeting is held on the second Tuesday following the election. Delegates are not compensated per diem or for expenses.
Each state, then, has differing procedures for the calling and holding of their ratification conventions. But in the end, the yay or nay votes of the conventions are what allows an amendment to pass or be rejected.
Permalink Reply by Mangus Colorado, Moderator on July 21, 2012 at 11:14am
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Permalink Reply by Mangus Colorado, Moderator on July 21, 2012 at 1:41pm
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Correcting the Record on Necessary and Proper

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Posted by Rob Natelson
 by Rob Natelson
Probably no part of the Constitution has been so misunderstood as the Necessary and Proper Clause, which is located at Article I, Section 8, Clause 18.  The Necessary and Proper Clause has been called both an “elastic clause” and a “sweeping clause,” and many have claimed it grants vast power to Congress.  For example, a recent Supreme Court case, United States v. Comstock , stated that the “Necessary and Proper Clause grants Congress broad authority to enact federal legislation.”
In fact, most federal regulations today are justified by the Necessary and Proper Clause.  They are said to be within Congress’s Interstate Commerce Power— but within not the core Commerce Clause (“The Congress shall have Power . . . To regulate Commerce . . . among the several States”).  Rather, they are said to be supported by the accompanying authority to “make all Laws which shall be necessary and proper for carrying into Execution” the power to regulate commerce.
Now, here’s the irony of the situation: Far from granting “broad authority” to Congress, the truth is that Necessary and Proper Clause grants no power at all.  It is placed at the end of Article I, Section 8 as an explanation—that is, a “recital.”  A recital is a passage in a legal document that has no substantive legal effect, but serves to inform the reader of assumptions or facts behind the document.  Another example of a recital in the Constitution is the Preamble.
In recent years, several constitutional scholars have investigated the true meaning of the Clause, and have worked to correct the record.  The process began with an article written by Professor Gary L. Lawson and Patricia B. Granger: The  Proper  Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267 (1994).  It focused on the meaning of “proper.”  A decade later, I delved into the historical record.  I found that wording of this kind was extremely common in eighteenth-century documents granting power from one person to another.  I also found the courts had issued cases interpreting this language, and that the Founders had adopted the courts’ interpretation. See articles here and here .
Finally, Professors Lawson and I teamed up with two other noted scholars, Geoff Miller, and Guy Seidman, and wrote a book on the subject.  (We all have differing political views, by the way.)  The book is called The Origins of the Necessary and Proper Clause , and it was published last year by Cambridge University Press.
Here’s what we found:
*    The Clause is a mere recital.  It informs the reader how to interpret congressional authority.  It does not grant any power.
*    The term “necessary” tells the reader that congressional authority is interpreted according to the intent behind the document, rather than very strictly (as the Articles of Confederation required).
*    The Clause does this by telling the reader that the legal “doctrine of incidental powers” applies to the Constitution. This means that Congress can regulate certain activities outside the strict reading of its powers, but ONLY IF this ancillary regulation is (1) subordinate to an express power, and (2) a customary or necessary way of carrying out the express power.  For example, in regulating commerce, Congress can require accurate labels on goods to be shipped in interstate commerce.  But Congress cannot regulate the entire manufacturing process.
*    The word “proper” means that a law must comply with Congress’s fiduciary (public trust) responsibilities.  A law is not “proper”—and is therefore unconstitutional— if it invidiously discriminates among people, violates individual rights, is utterly irrational, or exceeds congressional authority.
*    Contrary to prevailing legal mythology, Chief Justice Marshall’s famous case of McCulloch v. Maryland  (1819) did not stretch the Clause, but applied it properly and with due regard for its limitations.
The Original Constitution 
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Recently, Dave Kopel , the Independence Institute Research Director, filed an amicus curiae brief  in the most important anti-Obamacare lawsuit.  He did so on behalf of Professors Lawson, Seidman, and me.  The goal?  To correct the record and inform the courts what the Necessary and Proper Clause REALLY means.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/ .) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution  (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/ 
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been published or cited by many top law journals. (See: www.constitution.i2i.org/about/ .) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution  (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado's Independence Institute.
Permalink Reply by Mangus Colorado, Moderator on July 23, 2012 at 1:12pm
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And yes, I spent hundreds of hours, perhaps even thousands, researching our nation’s founding. That research included not only the framing of the Articles of Confederation, but the day to day debates during our existing Constitution‘s framing and ratification, and the first sessions of Congress during which time our founding fathers were in attendance and are found in the Annals of Congress.

And why is this research important? Because the most fundamental rule of constitutional law is stated as follows:

The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.--- numerous citations omitted__ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19 - - - Par. 92. Intent of framers and adopters as controlling.

If our objective is to be obedient to our Constitution and preserve our constitutionally limited “Republican Form of Government”, then we must work to establish the intentions and beliefs under which our Constitution was adopted as opposed to accepting the whims and fancies of those, especially judicial officers, who tell us what the Constitution means.

Jefferson put it this way:



"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

Why to you mock me for taking the time to actually find out and document the intentions and beliefs under which our Constitution was adopted?


JWK

"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.___ Chancellor James Kent, in his Commentaries on American Law (1858)
Permalink Reply by Mangus Colorado, Moderator on July 25, 2012 at 2:43pm
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Source for ratifying debates
Permalink Reply by Mangus Colorado, Moderator on July 25, 2012 at 2:44pm
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Here is a link for you also; I find it very useful for searching phrases or words.  Type your phrase or word in the large rectangle box and hit search. It will bold your search in the appropriate documents.  
The first link is the Search page and the second is the Home page.  
Permalink Reply by Mangus Colorado, Moderator on July 30, 2012 at 2:52pm
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7 presidents under the Article of Confederation
Permalink Reply by Mangus Colorado, Moderator on August 2, 2012 at 2:43pm
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Permalink Reply by Mangus Colorado, Moderator on August 2, 2012 at 2:51pm
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Permalink Reply by Mangus Colorado, Moderator on August 2, 2012 at 3:34pm
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Permalink Reply by Mangus Colorado, Moderator on August 2, 2012 at 7:17pm
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Good Grief: Oregon Man Sent to Jail for Collecting Rainwater

Posted on August 1, 2012 by Greg Campbell
I’ll admit that living in Oregon can be a mixed blessing. On one hand, it’s got great natural beauty, especially if you like trees and more trees. On the other hand, there isn’t much to do. Either way, how popular culture  typically depicts Oregon tends to be fairly accurate. The bigger cities have messenger-bag-loving hipsters with skinny jeans and ironic shirts and the smaller cities have trucks with gun racks in the window. While Oregon may be known for many things, totalitarianism is not one of them (that’s just south of us). A man in Southern Oregon is being jailed for collecting rainwater.- No, I’m not kidding.
You can imagine my confusion. It sometimes feels like it never stops raining in Oregon, so how can a man be jailed for collecting something that literally falls from the sky in such volume that the locals complain about its abundance?
Gary Harrington, of Eagle Point, has been collecting rain water on his rural property. He has been collecting the water with man-made ponds on his 170 acres, and has been fighting the government for the right to do so for ten years. Now, he is being sentenced to 30 days in jail and a $1,500 fine. Land of the free, indeed.
His three ponds consist of run-off water, which the Medford Water Commission has claimed Harrington does not have the right to collect. Harrington noted,
“When it comes to the point where a rural landowner can’t catch rainwater that falls on his land to protect his property, it’s gone too far. This should serve as a dire warning to all pond owners.”
Harrington contends that it is his property, and he should be able to do what he likes. The issue of water rights is tricky, I’ll admit. We cannot accept a person, for instance, diverting the entirety of a river for their own usage that would eventually flow to town whose farmers need the water. Laws were written to protect the rights of people downstream. However, despite the Water Commission’s assertions that his ponds are “tributaries” of Crowfoot Creek, it is merely rainfall. It is water that fell on the man’s land and that he has made fair usage of. While I’ll confess that my response would likely be different if someone had somehow diverted the entire flow of the Willamette River, which provides water for the farms of the Willamette Valley, the prosecution of a man for collecting water in a few ponds on his property violates the spirit and intention of water rights laws.
However, water rights are just a fraction of what this issue is about. More than anything, this example illustrates what most citizens have come to realize, and only a fraction of which seem to speak out against: the government has become bullies. We lose sight of the fact that this government is supposed to serve our needs, it is supposed to function as an executor of the will of the people. The biggest problem is that examples like this are not rare in the least. We have numerous problems in this country, none of which have anything to do with the enforcement of obscure water rights against men who build ponds on their property.
After ten years of fighting the government for the right to allow rainwater to collect, Harrington, too, believes the government is a bully. He stated,
“The government is bullying. They’ve just gotten to be big bullies and if you just lay over and die and give up, that just makes them bigger bullies. So, we as Americans, we need to stand on our constitutional rights, on our rights as citizens and hang tough. This is a good country, we’ll prevail”
While we have yet to see government do anything meaningful to fix our economy, the educational system, our convoluted tax code, illegal immigration or our national debt, there is no shortage of government addressing matters we wish they would leave alone. Every summer, I read about kids getting their lemonade stands shut down. I hear about zoning restrictions for treehouses. I hear about Chairman Bloomberg banning large sodas because he knows what’s best. If government wants to begin earning its keep, I suggest it focuses its efforts on actual problems. If they need a list of them, I’ll be happy to write it out for them.
However, waiting for government to get the picture isn’t enough. We need to remind them that they work for us. Harrington may go to jail for a month, but at least he has fought for ten years against that which he knows is wrong. We must all be willing to speak out against governmental bullying, even if the easier path is laying down. We must inform ourselves the best we can so that we can be ready to speak out when the opportunity presents itself. And the next time you catch a snowflake on your tongue, make sure nobody is watching; that snowflake belongs to the government.
To contact the Medford Water Commission, call : (541) 774-2440 or (541) 744-2430
To email them, write to: wtrcom@ci.medford.or.us
If you’re in the neighborhood: Board meetings, which are open to the public, are held twice monthly, on the first and third Wednesdays unless otherwise scheduled. The meetings are held in the City of Medford’s Lausmann Annex, Room 151, at 12:30 p.m.

Permalink Reply by Mangus Colorado, Moderator on August 5, 2012 at 3:59pm
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In 2010 the Democrats got 35,377,756 votes; the Republicans got 41,128,504 votes; the Constitution part got 251,741; the Libertarians got 1,074,189; the conservative party got 267,741.
Now if you should start a new party and were fortunate enough to take half of all the voters from the Republicans, Constitution, Libertarians, and Conservative parties you would end up with 21,361,086 votes. Take a look at the number of votes the Democrats got in 2010 when they were defeated handily. You would be defeated by 14,016,670 votes, and that's if you could get half of all the other parties votes. FAT CHANCE! All that would be accomplished is you would guarantee the Democrats a win in every election.  More to the truth would be that you and Deborah would comprise the new party, and maybe Dave Camp and Lewis.

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