Skip to comments.Congress Defies Article V of the U.S. Constitution by Ignoring 748 (or more) Article V Applications
Posted on 03/05/2010 10:17:22 AM PST by seeker7_dj
When it comes to amending the U.S. Constitution, Congress has shown respectful behavior to one type of action by states: state decisions on ratification of amendments proposed by Congress. But when it comes to states invoking Article Vs option for a convention of state delegates to propose amendments, Congress has, for the entire history of the nation, blatantly and illegally ignored those state applications.
As part of FOAVCs project to make available all such Article V Convention applications for public scrutiny, it has made an important observation. Congress has failed miserably (most likely by design) at its duty to track and keep a count of all Article V Convention applications (so that they will know when two thirds of the states have met the prerequisite number for a peremptory Article V Convention). Similar to ratification actions, Congress has categorized these as "memorials" from the states. Congress has referred these "memorials" to the House and Senate judiciary committees where they die, and are filed away in a multitude of volumes of printed Congressional Records (which we have painstakingly collected below), making it very difficult to keep an accurate count.
Also, please see the following Congressional Record which clearly demonstrates that the requisite number of states (i.e. two thirds or more) have already requested an Article V Convention, and Congress on has ignored their peremptory duty to call an Article V Convention:
(Excerpt) Read more at foavc.org ...
A “constitutional convention” is not the same thing as an Article V Convention. The language of Article V in the United States Constitution clearly limits an Article V Convention to “proposing amendments...to this Constitution.” Therefore, the only constitutional power the Article V Convention possesses is to propose amendments to the existing Constitution. It is merely an alternative methodology provided by the Framers to discuss and submit amendments for the states to consider. Regardless of how amendments are proposed, either by a two-thirds vote of both Houses of Congress or by Application of the Legislature of two-thirds of the States [which is the Article V Convention method], it would still be necessary for three fourths of the states to ratify such proposals before they would become effective.
On the other hand, a ‘constitutional convention’ — one that seeks to literally discard, replace and re-write the current Constitution — is blatantly extra-constitutional. It is neither authorized by our Constitution nor is it sanctioned elsewhere by any federal or state law. In short, a ‘constitutional convention’ would constitute a quasi-rebellious act if not an outright direct assault on our constitutional republic which, in the view of many constitutional scholars, would violate numerous federal and state laws. This is the type of convention that deserves the scorn of the American people. FOAVC absolutely and categorically opposes a constitutional convention.
The solution is simple, have our states send a copy of their call for convention to the other states, and establish and agree upon a time and a place to hold it.
Congresses duty in the process is purely ministerial, and unnecessary. We should hold it anyway when we get the required 2/3rds. Each state should be able to count up 34 calls themselves. Also as demonstrated last time Not every state has to send a delegation. Rhode island did not last time.
So this is really no biggie, just be sure to specify where the convention is to be held it can be done in any one of our 50 State houses.
Last time it was Pennsylvania’, this time it should probably be an initiating State house. As Virginia has already initiated a call for convention we might as well meet in Richmond. But we could just as well do it in Austin or Santa Fe. It doesn’t really matter, the State merely needs to donate uses of its State house for the convention.
Article V does NOT open up the entire Constitution to a full re-write! In fact, I’m not sure there is ANY provision that would allow that, short of a full-blown revolution.
Article V (please read the document!) simply offers two ways to suggest AMENDMENTS to the Constitution: Through Congress or through a gathering of representatives from the Several States. Either route would OFFER AMENDMENTS only. (Where the whole concept of a mighty “Constitutional Convention” came from is anybody’s guess.) We’re only talking about adjustments, kiddies. Relax.
Said Amendments would still require three-fourths approval by the Several States. Under no circumstances would this gathering of state representatives have any power to propose then instantly impose sweeping changes to the Constitution! Let me be the first (but hardly the last) to declare that I would CERTAINLY take up arms if such an abomination were attempted!
The whole thrust of this excellent article is that Congress is illegally taking for itself the sole power to propose Amendments to the Constitution. Only the Congress is allowed to do that and to hell with the States, they’re saying. Oh yeah? (What a great time for this article to appear!)
The only thing that gives me a touch of indigestion ... representatives from the Several States would be chosen by their state legislatures and would NOT be sitting members of Congress, right? Keep those crooks away and I’m fine with the rest of it.
So, let each state chuse three or five or 20 representatives, selected by the legislatures of their respective States. Then let them propose all the Amendments they want. (Start with fine-tuning the Commerce Clause and feel free to offer a dozen more, is my position.) Any proposals they make still need to clear the three-fourths rule, so fire away!
Yeah, I’m comfortable with that. In fact, WICKED comfortable with that! Yeah.
I understand what you’re saying, but I have to remind you that the original constitutional convention went well beyond what it was convened for, to amend the Articles of Confederation. And instead, they scrapped it completely and came up with something new.
I don’t trust a convention. I wouldn’t reccommend the Congress calling one. And there haven’t been two-thirds yet. Several states have revoked their applications.
right on seeker7_dj.
it was bill walker, former state chief justice tom brennan and myself who flipped some e-mails around which resulted in the founding of foavc. this took place after walker and i got his federal suit to the supreme court. i was later voted out of foavc (long story), but continue to advocate for the Article V Convention.
for those who parrot the same bogus arguments against dusting off the constitution and putting it to work for us here and now, you’re helping to seal our fate to the inevitable conclusion we face.
what the anti-conventionists fear is already talking place. the supreme court is an open-ended “constitutional convention” hell-bent on enslaving humanity in the name of a legal fiction. in other words, it’s convention or bust.
keep it up seeker7_dj. keep talking about it. i’ve been doing it for quite some time and will continue to.
this is my current site: http//www.articlev.org
to add, professor lawrence lessig out at harvard is also gearing up to build towards getting congress to issue the call: http://www.callaconvention.org
I hate to disagree with Publius or to correct his information but in this case I am forced to do so. After all, I owe him a great debt of thanks for it was he that spent nearly two years editing what has come to be known as the “overlength brief” for the original Walker v United States lawsuit via email and which many in the legal community have since stated is the most complete, detailed legal work on a particular legal subject they have ever read.
He states my lawsuit in 2000 was thrown out by Judge Coughenor. That is true but what he fails to note was that the judge threw the case out AFTER making a ruling that a convention was under the political question doctrine thus giving Congress a choice as to whether or not to call a convention when mandated by the Constitution to do so. In short, a veto. This issue was then taken up again the my more well known lawsuit Walker v Members of Congress (2004) which was, unlike the original Walker lawsuit, appealed to the Supreme Court of the United States.
While the court did not review the case, nevertheless the government was forced by the Supreme Court rules into admitting the following. This admission was made by the official attorney of record for the members of Congress. The lawsuit can be studied for those interested at FAQ 9.1 www.foavc.org. The admissions included: a convention call is peremptory, that a sufficient number of applications exist to cause a convention call; that a convention call is based on a simple numeric count of applying states with no other terms or conditions (such as when the application was submitted or the issue or issues it may contain); that to refuse to obey the Constitution was a criminal violation of oath of office on the part of the members of Congress.
Obviously therefore Publius’ statement regarding a 1992 law is incorrect. The fact is that while a law was considered by Congress in this year, it was not passed by the House and thus did not become law. Clearly if such a law had existed the attorney of record, the courts and so one would have referred to it in their court responses. No such reference was made. Therefore the only official standard for the basis of a convention call at this time is the admission made by the attorney of record, who by the way was the Solicitor General of the United States, made in Walker v Members of Congress.
Also I would point out that Congressman Billybob recently came out in favor of a convention call. If such a law had existed I’m sure he, the states as well as everyone else concerned with the issue would be referring incessantly to it.
Moreover the courts have precluded such a law ever being written in that in 1790 the courts made it clear the president shall have nothing to do with the amendment process. Without the president, Congress cannot pass legislation. They can pass a non-binding resolution, but not legislation. Further, any such legislation if it were passed must, under the terms of the 14th Amendment equal protection clause apply equally to Congress as well as the convention meaning if a convention can be limited to a single amendment proposal (despite the fact the Constitution clearly allows for the proposal of amendments) then Congress is equally limited.
I suggest all interested to to the Friends of the Article V Convention website www.foavc.org. There you can read the over 700 applications by the states for a convention. You can read the FAQ section discussing various aspects of the convention and you can become part of an ever growing movement to cause Congress to obey the Constitution where it clearly has refused to do.
The first thing I would like to say is I have a great deal of respect and admiration for Publius, Congressman Billybob, and Mcbeth (who I would assume is Bill Walker himself) for bringing to light a topic that so few have an understanding of as demonstrated by some of the responses to my post. That is to say a warped confusion and a vast difference of understanding between Constitutional Convention and an Article V Convention. Is it proper to call the latter an Amendment Convention?
Up until a couple of weeks or so ago I was totally naive of the ramifications presented in Article V and the framers historical intent behind it. I tried to read as much as is available about the subject before I posted. I performed several FReeper searches to determine if a previous posting existed and to my surprise came up with nothing. Perhaps my keywords were too precise such as Article V, Convention, Constitutional Convention and subsequent variations. As a personal rule I dont post starting topics but I do spend a great deal of time reading others. However, the subject matter struck something in me that especially peaked my interest due to the recent state of affairs this country is in. Publius somewhat chastised me and later apologized in a FReepmail but more importantly directed me to a previous post to learn from in which he wrote an excellent essay. The ensuing replies to which are also well worth reading. Please refer to post 13.
From what Ive been able to assemble in my personal research, which comprised of searches in Law Review sites, many government dot orgs, I sifted through as much as I could find of any reference pertaining to the 1992 law that Publius spoke of. In particular I was most interested in same subject criteria supposedly written into law or an entity thereof. The closest I could come to finding my answer I located in http://www.gpoaccess.gov/constitution/html/art5.html but as far as I could tell wasnt enacted into law. Im not saying there isnt one, I simply havent been able to locate it or its draft so if anyone can direct me to it Id be greatly appreciative. What Im having real difficulty understanding is if Congress considered the 1992 law; why wasnt it passed? I would think it in their best interest to define for all time the official nature of fundamental criteria for an Article V convention. Help!!!
With that said, even if same subject isnt encompassed in a law, I can certainly understand from a logical common sense approach why congress would refer to it as their unofficial rule. It simply doesnt make sense to me to call a convention on varying topics of amendment proposals. Would the convention (if called) discuss all topics submitted and lump all of them into one amendment or keep them separate for future ratification? Perhaps the courts knew this delicate affair and used the Political Question Doctrine to effectively unannounce the known unwritten congressional guideline and further determined it was Congresss responsibility to rectify the argument without going on record as saying so.
In 1992, when Congress recognized the ratification of the 27th Amendment (originally written as the first of 12 Amendments in the Bill of Rights by James Madison), it also regularized the process of calls for a new Convention. It established by law that in order to be contemporaneous, such calls must be made with the last seven years.
The Ssupreme Court, by the way, has recognized that a seven year limit is resonable and within the power of Congress in this amendment process. Look it up; read it for yourselves.
Bottom line: every single state call that is older than seven years is void, null, dead, of no effect whatsoever. And that is without considering the fact that the 1992 requires what I argued for 25 years before a majority of the state legislatures in the US, that to be counted together, calls must be "on the same subject."
So the whole premise of this thread is wrong, wrong, wrong, and obsolete to anyone who reads the applicable laws since 1992.
To all readers of this thread, do not take it seriously.
That Convention was called by the Final Report of the Annapolis Convention of 1886, requested by Convention President Dickenson and drafted by Alexander Hamilton. The fact that the Philadelphia Convention was open to all changes was confirmed by states' using Hamilton's language to empower their delegates -- to make changes "necessary to exigencies of the Union."
Read the original documents. Don't confuse people with false statements without competent sourcing.
Nine states had already accepted their invitations and chosen and authorized their delegates before Congress passed a non-binding resolution seeking to limit the Convention. Congress even recognized that it had no authority to convene or control that Convention. The exact words of Congress were "Resolved that in the opinion of Congress...." An opinion is NOT a binding law or regulation.
John / Billybob
the 1992 law is as unconstitutional as congress failing to carry out its obligation to issue the call. neither the congress nor the courts have any power to place any stricture on the applications for the Article V Convention whatsoever. those laws also fly in the face of supreme court rulings.
the supreme court is as corrupt as the legislature and so in the 90s of course they put up a show of how benevolent they are in sorting out “the mess.”
and if it’s law, how do you explain more than one state in the past two years attempting to pass resolutions recinding their past applications?
in my opinion any american today arguing that state applications older than seven years is of no effect, is part of the problem and likely an insider hoping to perpetuate the charade.
Marbury v. Madison, 5 U.S. 137 (1803): “It cannot be presumed that any clause in the constitution is intended to be without effect.”
The convention clause of Article V is not without effect.
Martin v. Hunters Lessee, 14 U.S. 304 (1816): “The government of the United States can claim no powers which are not granted to it by the Constitution.”
No branch of government has the power to question the validity of a state application for the Article V Convention.
Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842): “[The] Court may not construe the Constitution so as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them.”
To question the validity of a state’s application attempts to construe and defeat the obvious ends of the convention clause.
Dodge v. Woolsey, 59 U.S. 331 (1855): “The departments of the government are legislative, executive and judicial. They are coordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, right-fully done by either, is binding upon the others. The constitution is supreme over all of them, because the people who ratified it have made it so; consequently, any thing which may be done unauthorized by it is unlawful.”
The three branches of government are unauthorized to question the validity of a state application because the power to do so does not exist. In fact, according to Federalist 85, the saving grace of the Constitution is the prohibition of such a power. The validity/effect of each state application is based solely on its having been cast.
Jarrolt v. Moberly, 103 U.S. 580 (1880): “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.”
To attempt to question the validity of a state application, either through its contemporaneousness or subject matter, is to attempt to defeat its purpose and allow the mischief at which its aimed to suppress.
U.S. v Sprague, 282 U.S. 716 (1931): “Where intention of words and phrases used in Constitution is clear, there is no room for construction [re-interpretation] and no excuse for interpolation.”
Any attempt at construction or interpolation as to the validity of state applications runs counter to the intention of the words used in Article V.
Ullmann v. U.S., 350 U.S. 422 (1956): “Nothing new can be put into the constitution except through the amendatory process, and nothing old can be taken out without the same process.”
There’s nothing in the Constitution which places any stricture in any way whatsoever on the validity of state applications for a convention. If Anti-Conventionists wish to limit the validity/effect of a state’s application, they must propose such a law and then work to have that law ratified.
Ullmann v. U.S., 350 U.S. 422 (1956): “As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion.”
The constitutional guarantee to a national convention is currently suffering subordination. Based on the rule of law the Article V Convention is mandated, which means every Congress is in violation of the U.S. Constitution until the Article V Convention is convoked.
Again I must correct a statement this time by Congressman Billybob. He is totally wrong about same subject. As I pointed out in my above comment there was a 2004 Supreme Court case on this very issue. Under the rules of the Supreme Court the attorney of record for Congress was REQUIRED to state whether or not the facts and law stated in the brief were misstated. He acknowledged formally and officially they were not.
The only standard is a simple numeric count of applying states, two thirds. It is obvious Congressman Billybob cannot read. The language of Article V is clear and according to the Supreme Count cannot be altered by either legislature or courts. The meaning is clear. “On the application of two-thirds of the several state legislatures, [Congress] shall call a convention to propose amendments...” Another way of phrasing it is, “Congress, on the application of two thirds of the several state legislatures, shall call a convention...” The purpose of the applications is clear and obvious: to cause a convention call, not to propose a specific amendment. That is the job of the convention or congress. Congressman Billybob obviously forgets this point: states cannot propose amendments, only ratify them.
He cites the 27th Amendment as the basis for his argument and position. Congressman Billybob choose the one amendment that required 212 years to ratify. Thus, his own example defeats his statement as it clearly demonstrates ratification votes exist far longer than seven years. Moreover Congressman Billybob attempts to slip in a position that mixes up the proposal process. It is true the Supreme Court has ruled Congress, in its own proposals, may limit an amendment ratification time but it did not say this means Congress can control a convention’s proposal.
That would imply Congress has editing power over a convention’s amendment proposal. The effect of this would be to give Congress a veto power over the proposal, something the Founders obviously never intended.
To settle the point I’ll add my voice to others. Produce the law Billybob. It should be in U.S. Code somewhere. Simply provide the citation such as 5 U.S.C. 1407 and we can all read the law together. Otherwise it is clear Mr. Congressman Billybob is full of it.
I’ll repeat again. There is no law. There was a proposed law but that is not the same thing as a law.
Incorrect statement. First of all the Articles of Confederation did not allow for amendments. Instead it allowed for an “alteration” of the Articles of Confederation. Second, if you read Federalist 40 you’ll see correction to the Articles of Confederation wasn’t even mentioned by that Congress in its non-binding resolution. To read more see: http://www.nolanchart.com/article6449.html
Read, observe, learn. It's not too difficult, You can do it.
Oh, thats right, the congressional record. Where Congress can state their disclaimer and morph it into the force of law? Learn sumthin new every day
Ill be dog gone if I can find in the 1992 congressional record a voiding of outstanding calls. The voiding out must be written in invisible ink where the only way to read it is to hold it up to the light of a blue moon when the planets are lined up. Below is a link to Wikipedia, on the right side of the article are 3 pages indicating the certification from the Archivist. No voiding out there.
Or perhaps youre referring to the Concurrent Resolutions of the 27th Amendment, which BTW has NO force of law. - S.CON.RES.120 and/or H.CON.RES.320. http://thomas.loc.gov/cgi-bin/bdquery/z?d102:S.Con.Res120:
Heres a CRS Report for congress May 1995 outlining what Congress needs to address. Apparently as of its writing nothing has been done:
Some of the legal and constitutional issues involving state applications or petitions for a constitutional convention to propose constitutional amendments include: (1) whether or not all of the petitions have to be the same; (2) what are the scope and the limitations of such a convention; (3) what is the validity of any rescission of a petition by a state legislature; (4) do the state petitions have to be contemporaneous; and (5) what is the proper procedure for the enactment and submission of such petitions by state legislatures. There have been a number of bills in recent Congresses that have addressed these issues such as, S. 214, titled the “Constitutional Convention Implementation Act,” introduced in the 102d Congress, 1st Session (1991) which did not have any legislative activity.
Son of a gun, heres the bill mentioned above, introduced by Sen Orrin Hatch that was never passed into law. Constitutional Convention Implementation Act of 1991 http://thomas.loc.gov/cgi-bin/query/z?c102:S.214.IS:
Heres a House Congressional record Dec 2000 http://www.gpo.gov/fdsys/pkg/CREC-2000-12-15/pdf/CREC-2000-12-15-pt2-PgH12524.pdf where on the 4th page the Speaker of the House is addressed from the floor. Start with the paragraph beginning with:
Now, Mr. Speaker, the next time bomb which we have not bothered to listen to is the method of amending our constitution by holding a Constitutional Convention .. Do State petitions have to be contemporaneous?
Say what? I thought Congressman Billybob said when Congress recognized the ratification of the 27th Amendment (originally written as the first of 12 Amendments in the Bill of Rights by James Madison), it also regularized the process of calls for a new Convention. It established by law that in order to be contemporaneous, such calls must be made with the last seven years.
Well if thats true then why on several occasions after 1992 as Ive proved, is why are the question(s) still being asked regarding contemporaneous and same subject? I thought it was settled law in 1992?
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