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January 13, 2011

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If a law presumes to extend the reach of the federal government into an area where that government isn't delegated any authority, then it is not a constitutional law, and the agency created to enforce it is not a constitutional agency.

That the conservative establishment (and yes, many so-called Democrats)and most of its glibertarian allies stood mute in the face of the FISA abomination and the so-called "debate" on torture reveals this claim for what it is...pure unmitigated horse pucky.

"Every other OECD country has a Ministry or Department of Education. While I don't believe that this makes it correct, it indicates that other countries consider education challenges to be national in scope, so maybe the US should as well."

Then maybe we should amend our constitution to permit it.

'The article doesn't support, in any way, whatever point it was you were trying to make. You might try restating it.'

Federal government directly lending billions to students. Students don't have jobs. Students need to have jobs to pay back taxpayer funded loans. Jobs are not being created. Students default on loans. Fed initiates QE ?.

I'm not sure what actually happens when these loans are not paid back.

Did that person actually get shot?

Is this a real question, or a rhetorical question?

Phil:

Are you retarded?
Posting Rules, please, Phil.

Thanks.

I'm not sure what actually happens when these loans are not paid back.

Loan interest rates go up? That's how loans normally work: as defaults rise, you increase interest rates on new loans to cover the spread. This isn't rocket science. I'm fairly certain the feds and the banks have already gamed out various employment scenarios.

I think if there was a real problem here, we'd see concern voiced by a serious person with an economics or finance background. The fact that you can't even find one such person suggests that there is no significant problem here.

What's so hard to understand? The DOE doesn't have any Constitutional justification.

I know someone who believes that the US government is completely stupid for not hiring psychics and astrologers to advise the federal reserve and the US military. Now, that's a nutty fringe belief. But there's no real difference between that belief and the idea that the US Dept of Ed is unconstitutional. No one who knows enough law to become a federal judge believes that. And no significant number of people who've been elected to Congress or the Presidency believe it either.

Well, according to certain congressbeings* federal child labor laws are unconstitutional too.
I actually agree with Brett that the proper solution (for many problems) should be to change the constitution. I would go beyond that and say: scrap it and draft a new one that better reflects the realities of today**.
But I openly admit that the chances of that are zero or the result would likely be even worse.

*Senator Mike Lee(TP-Utah)
**which would even count as original intent. The idea that the original constitution would become holy scripture and last for centuries would come as quite a surprise to those that drafted it.

"**which would even count as original intent. The idea that the original constitution would become holy scripture and last for centuries would come as quite a surprise to those that drafted it."

You know, that "holy scripture" line really annoys me. The reason 'holy scripture' can't be amended, is that the supposed author isn't around to do it. So the priests, whenever they feel like changing their scripture, interpret it to mean something new, and claim it always meant that.

But our constitution isn't holy scripture, it CAN be amended, it has been a number of times. The reason it's not being amended anymore isn't because there's no way to amend it. It's because if Congress really wants an amendment now, the courts will almost certainly start interpreting the Constitution mean what Congress finds convenient, because you don't get to be a federal judge if the Senate thinks you'd balk at that. So Congress doesn't have any REASON to seek amendments.

The process doesn't work properly, sometimes Congress pushes a bit too far, too fast, and the courts they staffed to approve of one level of usurpation won't stomach a greater level. But then they just revise their selection criteria, and after a while they've replaced enough judges that the new change gets approved. For example, the Lopez decision, when Congress over-reached a bit with the 'gun free school zones' law, has been rendered inoperative by subsequent changes in the composition of the Supreme court. Not by the Constitution having been changed to permit the law.

So, in some ways the Constitution gets treated like holy scripture, but it's not the people who piss you off who are treating it that way, it's the people running the government, the 'priest class', who treat it that way, because doing so gives them more power, and cuts everybody out of the constitutional change loop. Only the courts they themselves determine the membership of can "refuse to ratify" an amendment under the new system.

The people you're complaining about want it treated like normal law: Interpreted honestly, and if you don't like what it says, you go ahead and change the words. And if you don't have the votes to change the words, it doesn't change.

Now, the situation here is rather different from most modern countries, because most modern countries have constitutions which actually DO authorize big government. This means that they don't have to interpret their constitutions to have it, and maintain a whole system of legal Orwellian doublethink to maintain those interpretations in place. They just go ahead and READ their constitutions, and treat them like real law.

That's why you don't have this whole living constitutionalism/originalism argument going on in most countries. The dynamic is completely different when you have a constitution which actually authorizes the sort of government you have, vs a constitution which has to be 'interpreted' to permit it.

Slarti: Did that person actually get shot?

Is this a real question, or a rhetorical question?

Whichever you prefer, since you seem to be engaging in one of your periodic bouts of incredulous rhetoric rather than serious argument.

The federal government has power to establish machinery to see to it that the laws of the land, adopted pursuant to the Constitution, are executed fairly and faithfully.

Right. The laws of the land include the 14th Amendment, which guarantees the equal protection of all citizens by the government. Public schools are an arm of government, and as late as the 1970s and 1980s states were showing that they could not be trusted to play nice and guarantee students equal protection of the law.* Thus, one of the roles of the Department of Education is to smack the states back into line when they run astray vis a vis education. This ain't rocket science.

Is it your view that the mere passage of legislation by the Congress and Presidential signature makes a law constitutional?

Nope.

And, even if constitutional, it is still inappropriate if the functions are adequately dealt with by states.

You and Brett and your "i" words! Inappropriate, impact, inconvenience . . . where are any of THOSE things in the Constitution?

The objective of a federated republican government is to divide governing responsibility, not push everything to the highest possible level.

A. Once again with the whiplash. When it comes to K-12 education, the Federal government barely has a role, so nothing has been pushed "to the highest possible level." 99% of what goes in in public K-12 schools is handled at the local level.

B. Same with Federal college loans. The DoE is not hiring professors, not designing curricula, not building campuses, not doing much of anything in colleges except maybe when there are TItle IX implications. So, again, what here has been "pushed to the highest possible level?"

It seems that you actually DON'T know what the DoE does and just have a bug up your butt about college loans.

Hey, BTW, are the five US service academies unconstitutional?


*It seems they STILL can't be trusted to play nice, as a GOP/tea party dominated school board in North Carolina has decided to give "separate but equal" a new try.

"You and Brett and your "i" words! Inappropriate, impact, inconvenience . . . where are any of THOSE things in the Constitution?"

I know this will shock you, but people who think some of the things the federal government does today are unconstitutional can also object to things as being bad policy. The two basis for objecting to things are entirely separate, and we're capable of using both, and knowing when we're using one or the other. You could figure it out, too: When we're saying something is wrong because it's unconstitutional, we tend to say so. When we object to it on policy grounds, we tend to use those "i" words, and not say anything about constitutionality.

Did which person actually get shot?

More examples of teatardism: the Tea Party of Tennesse wants to ban the teaching of anything in American history classes that might make the Founding Fathers look bad. This includes the Trail of Tears, the compromises that went into the writing of the Constitution...

The Supreme Court of Iowa is under attack by religous extrmists who don't hesitate to use apocryphal alnguage. The Iowa Chief justice has been labelled and enemy of God. yes, there are death threats.

Wisconsin legislature, which is Republican controlled is on the brink of passinglegislation that will require special Ids issued by their Dept of Motor Vehicles if one doe not have a driver's license. The special ID has to be acquired inperson during the Dept. restricted (due to budget cuts) hours by a person who has a hard copy of their SS card or a birth certificate. This will reduce the number of senior citizens and students who get to vote, which is the point.

And now this is all this Tenther crap which not coincidentally provides a rationalization for ending child labor laws and the minimum wage.

This si the real face of contmeporary conservatism, coming out from behind the mask of respectabliity.

"And now this is all this Tenther crap"

I look forward to you labeling the ACLU "Firsters", and dismissing their "Firster crap".

If any other gentle readers were baffled by the name 'Tenther', this American Prospect piece might be helpful

GOB,

Federal government directly lending billions to students.

That is a good thing. The social investment now will reap rewards in the future. Using private banks as the intermediary adds nothing to the program except unnecessary cost.

Students don't have jobs.

That is tragic. Then we should devote more resources to creating jobs. This strikes me as elementary.

Students need to have jobs to pay back taxpayer funded loans.

Or they could flee the country, or simply default, or get run over by a bus. Whatever.

Jobs are not being created.

Jobs are always being created. But yes, currently not enough are.

Students default on loans.

Stuff happens. Any well managed bank assumes some loans will go bad. Businesses default on loans all the time. Is this news?

Fed initiates QE ?.

Kirk to Spock...we have a logical breakdown. Student loans are pretty small potatoes, and the notion that these defaults would be some kind of crisis is farcical. In any event, the fed doesn't need to buy dodgy assets to shower the economy with money.

I'm not sure what actually happens when these loans are not paid back.

1. Currently the fed has accepted a lot of crap real estate loans at face value from the banks, and loaned them reserves. And you are worried about a few billion in student loans? You simply must be kidding.
2. The same thing as if Congress funded a program to print a lot of money that is piled up at the foot of the Washington Monument and ritually lit on fire, i.e., absolutely nothing.

I know this will shock you, but people who think some of the things the federal government does today are unconstitutional can also object to things as being bad policy

Then man up and defend your policy preferences. Stop hiding behind a faulty interpretation of the Constitution. Tell us.....

Why child labor is good for the economy

How separate but equal improves race relations.

Why we should abolish the SEC, FDA, AAA, FLRA, etc.

How Congress ceding its obligation to declare war improves the balance of powers

Why allowing the government to snoop into our daily lives improves social well being

How banning books improves our intellectual capabilities

Why abolishing habeas corpus streamlines our criminal justice system

How having an outsized military-industrial complex improves our safety at no cost financially or to our civic culture

Why bending our law to suit corporate needs over human needs improves society.

How banning the right to bargain collectively improves the economy.

I think Bobbyp's 'reasoning' is as follows:

1. I disagree with you about something.
therefore,
2. You must disagree with me about everything.

Agreed, it's not impressive reasoning, that list seems to be roughly orthogonal to my own positions, but it's the only basis I can figure out for him attributing those positions to me.

1. I don't think child labor generally would improve the economy, I think there are limited exceptions, such as parents involving their children in their own work, and I think we're declaring people to be "children" for far too long a period.

2. I don't think separate but equal improves race relations, maybe you should talk to colleges which maintain racially separate dorms? Not typically a conservative policy...

3. Why would we want to abolish the American Automobile Association?

4. I think Congress should never cede it's power to declare war. Problem is, Congress doesn't agree with me...

5. How do you get from my actual position, that no-knock searches should be almost entirely abolished, to favoring universal surveillance?

6. Actually, my position was that the Citizens United decision was required, once the current administration asserted that it was entitled to ban books.

7. I've stated that if we don't give alleged terrorists access to the legal system, the executive branch could just declare anyone it liked a terrorist, and they'd have no recourse.

8. I've said that we should consider letting the EU pay for their own defense. I bet they'd do it, if we stopped doing it for them...

9. Corporations are used by humans to satisfy their needs, the government imposes on corporations to get at people while maintaining the pretense that they're imposing on aliens from another planet, or some such.

10. Funny sort of right you're denied a choice about exercising...

Forget orthogonal, that list is pretty much the opposite of what I believe.

Whichever you prefer, since you seem to be engaging in one of your periodic bouts of incredulous rhetoric rather than serious argument.

Ok, if non-rhetorical, then no. The same is, likewise, true of a huge percentage of everyone else in the country who's been the subject of political commentary.

If you're trying to build a causal relationship here, you haven't done nearly enough work. Not a new thing, though.

OK, Slarti. When you have a contribution to make here aside from "Blaming people for stuff is easy and stupid," you let me know. Or maybe someone else can suss out exactly what it is you think you're accomplishing so far.

I don't think separate but equal improves race relations, maybe you should talk to colleges which maintain racially separate dorms

Wait, wait, hold on here . . which colleges MAINTAIN racially separate dorms, rather than offering minority students the option of living in single-ethnicity dorms?* Can I have a list here? Because I strongly suspect that number of items on that list is zero.


*The over/under on how many comments before someone asks whether white students have the option of living in a whites-only dorm is four. Place your bets.

How could they have that option, if the university weren't providing it? Can I have the option of a single ethnicity apartment? I was under the impression that sort of thing was illegal...

"*The over/under on how many comments before someone asks whether white students have the option of living in a whites-only dorm is four. Place your bets."

Under. Do they? ;)

Point being, you're looking for people supporting separate but equal, you're looking in the wrong place if you're looking at conservatives, it's liberal college administrations, where conservatives have no pull at all, that are into that sort of thing.

All the support for separate but equal, indeed pretty much any sort of official racial discrimination, is coming from the left end of the political spectrum.

Phil is correct here. Once you accept the reality of the 14th amendment and that the rights of people, not states, are paramount, then you allow a whole host of federal intervention on behalf of individuals who are allowed to petition their federal government for redress of grievences.

States and state-level interest groups have always been in the business of trying to ruin the lives of their political adversaries. The 14th amendment effectively empowers the federal government to protect citizens, the Department of Education is an example of this, but arguments against the DoE have been made since long before the DoE existed. But the DoE is small enough that it makes a convenient rhetorical target for congressional candidates that aren't going to abolish it once ey get elected.

Holy scripture gets updated all the time in several major religions*, although the updates are usually published separately from the original basic text (let's ignore for the moment the occasional rewrites St.Hieronymus style that are not marked as such).
As far as the US constitution is concerned, the debate about the amendments has more than casual similarity with theologians debating the value of the apokryphal scriptures. You may even find some that consider the original amendments to be invalid.

*not talking the Conservative Bible Project here or The Living Testament of Nuggan (for your convenience published as loose-leaf/ring binder to easily add the weekly updated abominations).

"You may even find some that consider the original amendments to be invalid."

Yeah, I know one guy, who when I point out some part of the Constitution he doesn't like, starts muttering about 'laches'. But he's not, you know, a conservative. I'm disputing who's responsible for this state of affairs.

If we have a constitutional convention, and the Constitution gets a major re-write, it's probably not going to be as a result of the efforts of liberals, for all that Sandy Levinson would like to see that happen. It's the left, generally, who want the Constitution's text left unaltered, while a priest class get to announce new meanings for it. While the right wants it treated like law, amended when changes are desired, and left unchanged if the votes aren't there to amend it.

And, that "if the votes aren't there to amend it" is key, isn't it, to why the left wants the Constitution treated like the Bible. They don't have the votes to get the amendments they want. Never did have the votes for the vast expansions of federal power they lusted for. It was subvert the judiciary into a 'amending' machine, or nothing.

While the right wants it treated like law

void where inconvenient, as in cases of torture, rendition, property rights involving [unwelcome minority of the day].

While the right wants it treated like law, amended when changes are desired...

Good to know that the ERA was supported by conservatives in your mirror universe.

The ERA was basically the last gasp of liberal efforts to amend the Constitution, it's failure cemented the determination to circumvent the Article V process, where the states actually had an option of rejecting an amendment. But amendments in the case of expansions of federal power had been given up on back in the 30's, seen from the start as hopeless.

Seriously, where are the 'progressive' amendments, since the ERA? I've seen the conservative ones, such as the balanced budget and term limits amendments, which actually got far enough to be debated in Congress, even had to be stage managed so that Republicans could pretend support for them without risking their passage.

But where are the liberal amendments? You had control of both houses there for a while, you could have tried to amend the Constitution, but you didn't, while conservatives keep trying.

Does this really sound like it's the right that wants the Constitution an unchanging scripture?

But where are the liberal amendments?

(Wiki)

* On January 25, 2009, Senator Russ Feingold put out a press release saying that he planned to introduce an amendment to end gubernatorial appointments to Senate vacancies.[6]

* Twenty-second Amendment repeal: proposed as early as 1989 by various congressmen including Rep. Barney Frank, Rep. Steny Hoyer, Rep. José Serrano,[7] Rep. Howard Berman,[8] and Sen. Harry Reid[9], have introduced legislation, but each resolution died before making it out of its respective committee. The current amendment limits the president to two elected terms in office, and up to two years succeeding a President in office. Last action was in February 2009.

even had to be stage managed so that Republicans could pretend support for them without risking their passage.

a cynic might think that the number of hopeless amendment proposals coming from "conservative" politicians is more about putting on a show for The Base than it is about a dedication to the unproven principle that "conservatives" are Teh Aw3some when it comes to following the law.

Ahh, so, 'the left' kept wanting to amend the constitution until it realized that it couldn't, while 'the right' realized that it is possible, so they have proposed amendments for flag desecration, school prayer, negating Roe v. Wade, invalidating the 14th amendment and prohibition of same sex marriage.

On the other hand, 'the left' has proposed the ERA, abolishing the death penalty, and having a direct popular election rather than thru the electoral college. It tells a lot what each side focusses on.

Hey, Brett, what does "cruel and unusual" mean? What does "due process" mean? What does "person" mean?

(He never answers, since it's tantamount to admitting that there are things in the Constitution which actually require interpretation, but I figure maybe the 100th time is a charm.)

it's liberal college administrations, where conservatives have no pull at all,

Haha, yeah, all those liberal millionaires on college boards of regents. And it's not like state colleges have to answer to the legislatures, or anything.

Your tendentiousness is matched only by your predictability.

I'll admit outright that there are things in the Constitution which actually require interpretation. As long as you'll admit they aren't they most of Constitution...

Oh, wow. Feingold actually issued a press release stating he was thinking of introducing an amendment! Another amendment was actually discussed in committee, but couldn't get enough votes to reach the floor. Other amendments have been, gasp, talked about. And this is equivalent to the Senate falling one vote short of sending a conservative originated balanced budget amendment out to the states?

You're trying to make my point for me? Where are the formally drafted amendments? The floor votes falling a few votes short? The serious efforts to change the text to be more to your liking.

They're not there, because your side concentrates on getting judges to say the Constitution has always meant whatever new meaning you want it to have. YOU are the ones treating it like scripture, not the conservatives.

I don't think either side treats it like Scripture. I think both sides interpet and one side won't admit it.

They're not there, because your side concentrates on getting judges to say the Constitution has always meant whatever new meaning you want it to have.

Usually, when something unpleasant is pointed out about 'your side', you say all politicians are sociopaths and they don't represent your views. This suggests that you don't have problems with
-the flag desecration amendment
-the several times proposed federal marriage amendment
-the repeal/revision of the 14th amendment for jus solis citizenship

I look forward to you defending those here the next time questions come up.

I have considerable problems with some of the amendments the right suggests, but "They're treating the Constitution like it was holy scripture!" certainly isn't a rational response to somebody trying to legally amend the Constitution to be more to their liking. It's an irrational response to somebody not sharing your contempt for the document, thinking it ought to be enforced as written until it's actually changed by the legal process set out for doing so.

How about this one Brett?

link

If you support some sort of return to the original wording, you have to support this. Show us YOUR rational response to this attempt to take us back to the days of Upton Sinclair.

(hope the italics and caps help you focus in on the key points, as it seems to be the way you roll)

"If you support some sort of return to the original wording"

It's not just the 'original' wording, it's the CURRENT wording. And, yeah, I support the idea that federal laws against child labor are unconstitutional.

Which has nothing to do, at all, with whether I think state level child labor laws are a good idea.

Ladies and gentleman, the first Jewish President of the United States, if she can survive the murderous blood libel, and the pogroms, and the support of the radical rabbis in the land of redrum:

http://andrewsullivan.theatlantic.com/the_daily_dish/2011/01/a-hymn-to-saint-sarah.html

May the death palins of Arizona become the law of the land so that we may save a shekel and may Martin Luther King fall to his knees and kiss the ass of the Governor of the great State of Maine and recite the "I Have A Dream" speech into the Governor's butt crack.

May Rep. Giffords awake and ambulate to a microphone and apologize for bringing violence unto the Jews of the cracker diaspora, not to mention repent any thoughts she might have harbored of thinking she was better than her adversaries the true Jews of Israel, with her incendiary remarks, and may her pre-existing gunshot wound be reason for canceling her health insurance under the new Jewish law of the Confederate matza who shall balance the budget by letting perfectly good livers go to waste.

Murder stalks the land but the victims shall not go by the name of the dead but by the name of those in higher tax brackets.

I'd say that the constitution is not actually treated as holy scripture* but many pretend that they do while the other side desecrates it. As I have stated repeatedly in the past, I think the constitution is only still around in it's old form because the moment it becomes inconvenient it is put in the safe and ignored until the current 'crisis' is over. If there would be consequences to that, the old piece of parchment (or was it paper?) would long have been relegated to the museum of ancient history becasue reality would tear it to pieces in no time.
But a new constitutional convention would be imo completely unworkable because I think that a) to become a member of the group to draft a new one would be signing one's own death warrant and b) no document thus produced could ever get even a simple majority in the US**

*or as one would expect to in an ideal world. People in the real world are often quite disrespectful of even their own holy scripture.
**cynic that I am, I'd even inclined to say that any that would get a majority should be treated as a confirmed time bomb

Essentially, your argument boils down to Americans being incapable of self-government, so the political class has to do whatever it takes to keep us from having any control over the substance the highest law of the land, either negative or positive.

When are the elections going to be canceled? That would seem to be the next logical step...

You assume that a statement of fact is equal to agreement. I think the 'supreme law of the land' has to a good deal become a piece of paper ignored by those that can be pretty sure not to be held accountable for it (although I assume that we strongly disagree about who is the actual culprit here).
The reactions (or lack thereof) of the populus to that anything but new situation makes it indeed possible to come to the conclusion that the ability for self-government is at least severely weakened. But the status quo favors enough people with enough of influence to make any attempt to radically change it a rather dangerous undertaking*.
Cynical me: why cancel elections when they don't change the status quo anyway**?
I believe a new constitutional convention would quickly turn from a shouting into a shooting contest and the level of demagoguery would rise beyond anything seen in living memory. Any consent would be so wishywashy to be unworkable and, if adopted, lead quickly to either anarchy or tyranny.
If the population was split in two along ideological lines, each side could probably work out a solution that a majority on their side would accept and that could function. But those two solutions would be mutually exclusive. I guess the 'left' side would go for something similar to France, i.e. a centralized social democracy with a strong directly elected head of state while the 'right' would go for a patchwork solution closer to a federation than a federal state with a very weak separation of powers in the individual states (=local power monopolies), socially restrictive, economically laissez-faire.

*I think there is a limit to how far the country can be pulled to the right before leftist terrorsim (now close to nonexistent in the US) could arise again. Sarah Palin as POTUS might be beyond that line. I do not think there is a line where terrorism form the other side would dry up. There will always be one considering you*** a commie however far to the right you are.
**Kurt Tucholsky: Elections change nothing or the would be illegal.
***no specific 'you'

Perhaps we're not so far apart as it seemed, then. I think the political class are determined to see that self-government is impossible to the extent that the public disagrees with them about anything. And the general public disagree with the political class pretty strongly on any number of topics.

OTOH, I do think it's possible to have a constitutional convention without piling up bodies, IF there are no serious hijinks when it comes to the selection of delegates. That's one of the serious weaknesses of Article V, that it doesn't specify how the delegates are selected, and that's a rather crucial matter.

If it looks like the delegate selection is being rigged, all bets are off. But I can't see Congress not trying to rig a convention, amendments they don't have the opportunity to veto represents a dire threat to their power.

I think congressbeings would be the least problem and the agitation would come from other directions. But there would be rigging attempts galore, no doubt on my side about that.
But even if a reasonable draft would emerge from that, how to ratify it? Since I would not entrust that to any legislative body (gerrymandered as most of them are), the only fair choice would be a plebiscite with a very high quorum (75-80% looks reasonable to me). That brings us first to the question of voter registration (an unsolvable mess, if you ask me) and then voter participation (notoriously low even when there seems to be a real choice).
---
Apart from all that, whatever one thinks of the general intelligence of the common voter, judging something as complex and far-reaching as a constitution is above most people's payment level. I would include myself there. The German population was exempted from voting on the EU constitution (other countries had plebiscites) but I took the effort to study the text nonetheless (we also had some local plebiscites on some laws). I think I can spot some potential flaws but I feel not competent enough to make judgement calls about ramifications on a larger scale.
On my current job I have to regularly study EU environmental legislation resp. drafts thereof (pure sleeping pills most of them). Same problem there. And that's all before my personal bias comes into play.
I don't think it's arrogant, if I say that I consider myself above average (at least among non-professionals) in this general area (laws and policy)*, and if I consider myself not really competent, then the majority of the population won't be either.
It's a dilemma. Those who are competent enough are likely to have conflicts of interest and those who haven't lack the competence. Some things don't allow test runs and a constitution would clearly be among them. The current German constitution may be a rare exception since the WW2 victors could have called it off, if it had failed in practice.

*for comparision, I consider myself to be way below average on the topic of sports and many areas of popular culture.

"But even if a reasonable draft would emerge from that, how to ratify it?"

Now, THAT is a point on which Article V is explicit: The work output of a convention is treated exactly the way amendments originating with Congress are treated, no different. It's just an alternate way of generating amendments, it has nothing to do with their ratification.

The convention doesn't have to create a new constitution from scratch, it's job is proposing amendments to the one we've got.

The real question, as far as I'm concerned, is what we do when the states call for a convention, and Congress ignores the call. As they very well might. Routing the convention process through Congress was, IMO, one of the founders' worst mistakes, in terms of structural provisions. You're only going to use a convention when Congress is uncooperative, and then require Congress to call the convention when the states ask for it?

Stupid.

There is a point were mere patching up will not do. If the US gets a new one it will probably not follow orderly procedures but come after a total breakdown and a period not really governed by the old, although it might formally stay in place. Nazi Germany had no new constitution but kept the old with Hitler ruling formally through the emergency clause (Notverordnung) and the Enabling Law (Ermächtigungsgesetz). After WW2 it was decided to start from scratch (keeping only some very special articles dealing with certain aspects of the relations of church and state).
The new constitution gets not amended but changed if necessary (with an attached record of changes). Far easier to handle.

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