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| documents:answers:liberal-articlev-disinfo [2020/02/18 20:40] – Oliver Wolcott | documents:answers:liberal-articlev-disinfo [2020/02/18 20:43] – Oliver Wolcott |
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| ===== Footnotes ===== | ===== End notes ===== |
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| <BOOKMARK:i>1. Robert G. Natelson, the Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, was a law professor for 25 years at three different universities. He has written extensively on the Constitution for both the scholarly and popular markets, and since 2013 has been cited increasingly at the U.S. Supreme Court, both by parties and by justices. He is the nation's most published active scholar on the amendment process, and heads the Institute's Article V Information Center. For a biography and bibliography, see http://constitution.i2i.org/about. | |
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| <BOOKMARK:ii>2. The Lamp of Experience: Constitutional Amendments Work, [[http://constitution.i2i.org/2014/03/09/thelamp-of-experience-constitutionalamendments-work/|http://constitution.i2i.org/2014/03/09/thelamp-of-experience-constitutionalamendments-work/]] | |
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| <BOOKMARK:iii>3. [[historicaldocuments:constitution#section_8|U.S. Const., art. I, § 8, cl. 18]]. | |
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| <BOOKMARK:iv>4. For a survey of the law of Article V, see Robert G. Natelson, A Treatise on the Law of Amendment Conventions: State Initiation of Constitutional Amendments: A Guide for Lawyers and Legislative Drafters (2014). | |
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| <BOOKMARK:v>5. "A Friend of Society and Liberty," Pa. Gazette, Jul. 23, 1788, reprinted in 18 Documentary History of the Ratification of the Constitution of the United States, 277, 283. Coxe's writings were at least as influential with the general public as The Federalist Papers. He was a member of Congress and Pennsylvania's delegate to the Annapolis convention, and the first Assistant Secretary of the Treasury. By a "general convention," Coxe meant a national rather than a regional gathering. | |
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| <BOOKMARK:vi>6. Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution's "Convention for Proposing Amendments," 65 Fla. L. Rev. 615 (2013). | |
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| <BOOKMARK:vii>7. Id. | |
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| <BOOKMARK:viii>8. Liberals occasionally crusaded for amendments as well, but by and large their clout in Congress, the bureaucracy, and the courts was sufficient for their purposes. | |
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| <BOOKMARK:ix>9. Philip L. Martin, The Application Clause of Article Five, 85 Pol. Sci. Q. 615, 623 (1970). The Sixteenth Amendment did not, as some say, authorize the federal income tax; it merely dropped the requirement that federal income tax revenues be apportioned among the states by population. | |
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| <BOOKMARK:x>10. Russell L. Caplan, Constitutional Brinksmanship (Oxford Univ. Press 1988) [hereinafter "Caplan"], 74 (Eisenhower), 85 (Reagan), 71 (Scalia). There are reports that Scalia changed his position after ascending to the Court. | |
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| <BOOKMARK:xi>11. The disinformation has lost credibility in the last few years, as explained below. In 1992, reformers did success in obtaining ratification of the 27th amendment, limiting congressional pay raises, but that amendment had been proposed in 1789 as part of the Bill of Rights. | |
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| <BOOKMARK:xii>12. Caplan, p.69. | |
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| <BOOKMARK:xiii>13. Charles L. Black, Jr., The Proposed Amendment of Article V: A Threatened Disaster, 72 Yale L.J. 957 (1963). Black engaged in similar histrionics in the title of another article: Proposed Constitutional Amendments: They Would Return Us to a Confederacy, 49 A.B.A J. 637 (1963). | |
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| <BOOKMARK:xiv>14. By its terms, the Necessary and Proper Clause applies to the 17 preceding powers in Article I, Section 8 and to powers granted to the government of the United States and to "Officers" and "Departments." A convention fits none of those categories. See The Constitution's Grants to Persons and Entities Outside the Federal Government, [[http://constitution.i2i.org/2014/12/18/theconstitutions-grants-to-persons-andentities-outside-the-u-s-government/|http://constitution.i2i.org/2014/12/18/theconstitutions-grants-to-persons-andentities-outside-the-u-s-government/]] and No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention, [[http://constitution.i2i.org/2014/08/23/no-the-necessary-and-proper-clause-doesnot-empower-congress-to-control-anamendments-convention/|http://constitution.i2i.org/2014/08/23/no-the-necessary-and-proper-clause-doesnot-empower-congress-to-control-anamendments-convention/]] . | |
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| <BOOKMARK:xv>15. William F. Swindler, The Current Challenge to Federalism: The Confederating Proposals, 52 Geo. L. J. 1 (1963) | |
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| <BOOKMARK:xvi>16. The overwhelming majority of law reviews are student-edited. Because students are often unable to judge the quality of articles submitted to them, the relative prestige of the author's academic institution is influential in the decision of whether to accept a submission. This is an open secret among law professors and supported by empirical research. Jonathan Gingerich, A Call for Blind Review: Student Edited Law Reviews and Bias, 59 J. Legal Educ. 269 (2009). | |
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| <BOOKMARK:xvii>17. Caplan, p. 74. | |
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| <BOOKMARK:xviii>18. Caplan, pp. 75-76 | |
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| <BOOKMARK:xix>19. Caplan, p. 76. Javits was liberal not just for a Republican, but (like some of his GOP colleagues at the time) liberal in an absolute sense. His voting record was regularly marked as above 80% by the left-of-center Americans for Democratic Action. | |
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| <BOOKMARK:xx>20. Caplan, p. 147. See below for other comments by associates and allies of the Kennedy clan. | |
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| <BOOKMARK:xxi>21. Paul G. Kauper, The Alternate Amendment Process: Some Observations, 66 Mich. L. Rev. 903 (1968). | |
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| <BOOKMARK:xxii>22. Smith v. Union Bank, 30 U.S. 518, 528 (1831). For other sources, see [[http://constitution.i2i.org/2014/03/28/howdo-we-know-an-article-v-amendmentsconvention-is-a-“conventionof-the-states|http://constitution.i2i.org/2014/03/28/howdo-we-know-an-article-v-amendmentsconvention-is-a-]][[http://constitution.i2i.org/2014/03/28/howdo-we-know-an-article-v-amendmentsconvention-is-a-“conventionof-the-states|]][[http://constitution.i2i.org/2014/03/28/howdo-we-know-an-article-v-amendmentsconvention-is-a-“conventionof-the-states|%E2%80%9Cconventionof-the-states%E2%80%9D-because-boththe-founders-and-the-supreme-court-saidso/]] | |
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| <BOOKMARK:xxiii>23. Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189 (1972) | |
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| <BOOKMARK:xxiv>24. The 1832 resolution of Georgia and the 1833 resolution of Alabama were both limited as to subject. The 1788 Virginia resolution and the 1864 Oregon resolution were both arguably limited. Robert G. Natelson, Amending the Constitution by Convention: Lessons for Today from the Constitution's First Century, 3, 5 & 7 (Independence Institute, 2011), available at [[http://liberty.i2i.org/files/2012/03/IP_5_2011_c.pdf|http://liberty.i2i.org/files/2012/03/IP_5_2011_c.pdf]] . | |
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| <BOOKMARK:xxv>25. Martin, p. 628. | |
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| <BOOKMARK:xxvi>26. Caplan, p. viii. | |
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| <BOOKMARK:xxvii>27. According to the Westlaw database. | |
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| <BOOKMARK:xxviii>28. Caplan, p. 64. | |
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| <BOOKMARK:xxix>29. Lawrence H. Tribe, Issues Raised by Requesting Congress to Call a Constitutional Convention to Propose a Balanced Budget Amendment, 10 Pac.L.J. 627 (1979). | |
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| <BOOKMARK:xxx>30. Robert G. Natelson, [[documents:external:articlev-handbook#answers_to_criticisms|The Article V Handbook 33-35]] (2d ed., 2013). | |
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| <BOOKMARK:xxxi>31. See, e.g., [[http://www.eagleforum.org/alert/2011/pdf/20Questions.pdf|http://www.eagleforum.org/alert/2011/pdf/20Questions.pdf]] . | |
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| <BOOKMARK:xxxii>32. Gerald Gunther, The Convention Method of Amending the United States Constitution, 14 Ga. L. Rev. 1 (1979). | |
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| <BOOKMARK:xxxiii>33. Walter E. Dellinger, The Recurring Question of the "Limited" Constitutional Convention, 88 Yale L.J. 1623 (1979). | |
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| <BOOKMARK:xxxiv>34. To give due credit: Four years later Dellinger also published an article correctly pointing out that Article V issues were justiciable in court. Walter E. Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev 386 (1983). | |
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| <BOOKMARK:xxxv>35. Arthur J. Goldberg, The Proposed Constitutional Convention, 11 Hastings Const. L. Q. 1 (1983). | |
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| <BOOKMARK:xxxvi>36. Thomas H. Kean, A Constitutional Convention Would Threaten the Rights We have Cherished for 200 Years, 1986 Det. C.L. Rev. 1087 (1986) | |
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| <BOOKMARK:xxxvii>37. Caplan, p. 85. | |
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| <BOOKMARK:xxxviii>38. Warren Burger, William F. Swindler: A Tribute from the Chief Justice of the United States, 20 Wm. & Mary L.J. 595 (1979). | |
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| <BOOKMARK:xxxix>39. William F. Swindler, 70, Dies; Scholar of U.S. Constitution, New York Times, May 7, 1984, available at [[http://www.nytimes.com/1984/05/08/obituaries/william-f-swindler-70-dies-scholarof-us-constitution.html|http://www.nytimes.com/1984/05/08/obituaries/william-f-swindler-70-dies-scholarof-us-constitution.html]] . | |
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| <BOOKMARK:xxxx>40. One example of support for a convention by conservative and libertarian legal scholars and opinion leaders, including some former skeptics, is the "Jefferson Statement," [[http://www.conventionofstates.com/the_jefferson_statement|http://www.conventionofstates.com/the_jefferson_statement]] . | |
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| <BOOKMARK:xxxxi>41. For a scorecard of recent developments, see [[https://www.facebook.com/pages/FixWashington-By-Calling-an-Article-VAmendmentsConvention/598865556818994|https://www.facebook.com/pages/FixWashington-By-Calling-an-Article-VAmendmentsConvention/598865556818994]] . | |
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| <BOOKMARK:xxxxii>42. [[http://www.dailykos.com/story/2013/12/04/1260066/-Alert-Art-V-ConventionThreat-Grows-Dec-7-2013-Assembly|http://www.dailykos.com/story/2013/12/04/1260066/-Alert-Art-V-ConventionThreat-Grows-Dec-7-2013-Assembly]] . | |
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| <BOOKMARK:xxxxiii>43. [[http://www.washingtonpost.com/posteverything/wp/2014/10/21/a-constitutionalconvention-could-be-the-single-mostdangerous-way-to-fix-americangovernment/|http://www.washingtonpost.com/posteverything/wp/2014/10/21/a-constitutionalconvention-could-be-the-single-mostdangerous-way-to-fix-americangovernment/]] . | |
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| <BOOKMARK:xxxxiv>44. [[http://sorosfiles.com/soros/2011/10/center-on-budget-and-policy-priorities.html|http://sorosfiles.com/soros/2011/10/center-on-budget-and-policy-priorities.html]] | |
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| <BOOKMARK:xxxxv>45. The email can be read at [[http://constitution.i2i.org/files/2015/03/OLoughlin-email.pdf|http://constitution.i2i.org/files/2015/03/OLoughlin-email.pdf]] . The language quoted here was underscored for emphasis. | |
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