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documents:cosproject:surge:article_6-howthecourts [2018/03/25 12:06] – Oliver Wolcottdocuments:cosproject:surge:article_6-howthecourts [2018/03/25 13:17] – Oliver Wolcott
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 {{:documents:cosproject:surge:surge-6-1.png?800|One source of security we have... is the courts’ long history of protecting the integrity of the [amendment] procedure.}} {{:documents:cosproject:surge:surge-6-1.png?800|One source of security we have... is the courts’ long history of protecting the integrity of the [amendment] procedure.}}
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 ===== How the Courts have Clarified the Constitution’s Amendment Process ===== ===== How the Courts have Clarified the Constitution’s Amendment Process =====
 **Robert Natelson, Independence Institute’s Senior Fellow in Constitutional Jurisprudence and Head of the Institute’s Article V Information Center** **Robert Natelson, Independence Institute’s Senior Fellow in Constitutional Jurisprudence and Head of the Institute’s Article V Information Center**
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 Here are some of the key issues the courts have addressed, either in binding judgments or in what lawyers call “persuasive authority.” This listing of cases is only partial. Here are some of the key issues the courts have addressed, either in binding judgments or in what lawyers call “persuasive authority.” This listing of cases is only partial.
  
-  * Article V grants enumerated powers to named assemblies—that is, to Congress, state legislatures, conventions for proposing amendments, and state conventions. When an assembly acts under Article V, that assembly executes a “federal function” different from whatever other responsibilities it may have. //Hawke v.////Smith, //253U.S.221 (1920);// Leser v. Garnett, //258 U.S. 130 (1922);// State ex rel. Donnelly v. Myers, //127Ohio St.104, 186 N.E. 918 (1933); //Dyer v. Blair,//390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens).+  * Article V grants enumerated powers to named assemblies—that is, to Congress, state legislatures, conventions for proposing amendments, and state conventions. When an assembly acts under Article V, that assembly executes a “federal function” different from whatever other responsibilities it may have. //Hawke v. Smith, //253U.S.221 (1920);// Leser v. Garnett, //258 U.S. 130 (1922);// State ex rel. Donnelly v. Myers, //127Ohio St.104, 186 N.E. 918 (1933); //Dyer v. Blair,//390 F. Supp. 1291 (N.D. Ill. 1975) (Justice Stevens).
  
   * Article V gives authority to named assemblies, without participation by the executive. //Hollingsworth v. Virginia//, 3 U.S. (3 Dall.) 378 (1798).   * Article V gives authority to named assemblies, without participation by the executive. //Hollingsworth v. Virginia//, 3 U.S. (3 Dall.) 378 (1798).
  
-  * Where the language of Article V is clear, it must be enforced as written. //United////States v. Sprague, //282U.S.716 (1931).+  * Where the language of Article V is clear, it must be enforced as written. //UnitedStates v. Sprague, //282U.S.716 (1931).
  
   * That does not mean, as some have claimed, that judges may never go beyond reading the words and guessing what they signify. Rather, a court may consider the history underlying Article V. //Dyer v. Blair, //390F. Supp.1291(N.D. Ill.1975) (Justice Stevens). It may also consider what is implied as well as what is expressed. //Dillon v. Gloss,//256 U.S. 368 (1921). In other words, courts apply the same rules of interpretation to Article V as elsewhere.   * That does not mean, as some have claimed, that judges may never go beyond reading the words and guessing what they signify. Rather, a court may consider the history underlying Article V. //Dyer v. Blair, //390F. Supp.1291(N.D. Ill.1975) (Justice Stevens). It may also consider what is implied as well as what is expressed. //Dillon v. Gloss,//256 U.S. 368 (1921). In other words, courts apply the same rules of interpretation to Article V as elsewhere.
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   * The two - thirds vote required in Congress for proposing amendments is two thirds of a quorum present and voting, not of the entire membership. //State of Rhode Island v. Palmer//, 253 U.S. 320 (1920).   * The two - thirds vote required in Congress for proposing amendments is two thirds of a quorum present and voting, not of the entire membership. //State of Rhode Island v. Palmer//, 253 U.S. 320 (1920).
 {{:documents:cosproject:surge:surge-6-2.png?800|The courts are very much in the business of protecting Article V procedures, and they have done so for more than two centuries.}} {{:documents:cosproject:surge:surge-6-2.png?800|The courts are very much in the business of protecting Article V procedures, and they have done so for more than two centuries.}}
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documents/cosproject/surge/article_6-howthecourts.txt · Last modified: 2021/02/23 16:14 by 127.0.0.1