Congressional Duty vs. Discretion. Article V.

Our Constitution details both duties and discretions to its member states and three branches of government. Duties involve commands that must be obeyed, while the exercise of discretionary power is of course, optional.

For instance, Congress has the option to implement enumerated, delegated powers such as those in Article I Section 8. Congress does not have to write statutes involving taxation, commerce, naturalization, post offices & post roads, etc. It may do so as it sees fit. These are specific grants of power from We the People, which when used as intended, facilitate the general welfare and blessings of Liberty.

OTOH, there are duties in the Constitution which the three branches, its office holders, and states MUST perform. Congressional elections must be held every second year. Governors shall issue writs to fill temporary vacancies in their congressional delegation. States shall prescribe the times, places, manner of holding elections. Each house of congress shall keep a journal of its proceedings. Money bills shall originate in the House of Reps, etc.

That was a sample of Congressional duties. There are more. One of them is in Article V. Upon the application of two thirds of the state legislatures, Congress shall call a convention for proposing amendments. Hamilton wrote of the rather obvious in Federalist #85, when he described Congress’ duty to call a convention “peremptory,” meaning Congress must call the states to a convention.

The states have submitted over four hundred Article V applications to Congress for a convention to propose amendments, yet Congress has never called the states to convene. A Congressional call to convention is not discretionary. It is a duty, a command that cannot be legitimately avoided, just like all of the other mandatory actions We the Sovereign People wrote into our governing document.

When government fails to perform its assigned obligations, We the Sovereign People have every right and responsibility to take those actions which we deem appropriate to solve the problem.

Since Congress has not called an amendments convention in the past, it is reasonable to assume it will not in the future. The people via their states must do so on their own volition. Nothing in the Constitution, no prohibition exists to prevent the states from convening, and in fact, the 9th and 10th Amendments point to just the opposite. It is the fundamental right of every nation to be governed by such supreme laws, in such manner, and by such institutions as they think most beneficial to their own good, for they cannot be accountable to anyone but themselves. In the American system, the governing will of the nation is expressed by the people acting in their Sovereign capacity, in convention.

This isn’t a radical, momentous, or odd idea; it is the expression of what all free people have historically done to secure their Liberty and Happiness.

I readily acknowledge that there have been well over 400 State applications for an Article V COS in our history. Yet as you note, Congress has not yet called such a convention. And from this obvious fact, you draw the conclusion: There's "not a chance" that Congress would ever do so.

I have difficulty following your reasoning — which only makes sense if one thinks that the simple arithmetical number of applications is in itself decisive for the purpose of a Congressional Call, and not the substance of such Applications.

Though it's not spelled out in Article V directly, there is a very long tradition, completely backed up by Article V, that State Applications must bear on some more-or-less same idea that could inspire 34 states to work together in the proposal of amendments to the federal constitution. This is where your hated "aggregation rule" comes into effect.

As you well know, Article V gives equal dignity and power to two modes of proposing amendments to the Constitution. One mode is by the Congress itself; the other is by the States themselves, acting in concert at least to the point of showing a 34-State quorum on common areas of concern. This is what the principle of aggregation refers to.

When Congress takes up a proposed amendment, that body is already "aggregated" as to the purpose of doing that. To get two-thirds majorities in both houses, both must then "aggregate" their approval. Then they send their product to the States for the necessary three-fourths-of-the-states ratification before it can become constitutional law.

My point is, when Congress uses its Fifth Amendment powers, it is doing so as a more-or-less unified body as to the issue under dispute. And two-thirds of both chambers must agree, before the matter can be sent to the States for ratification.

So why should the States have to show anything less than indications of common, unified, purposeful action, when they submit Applications for an Article V COS?

For the record, of all the 400+ State Applications thus far, only four have applied for "a general convention." But I think if another 30 States were similarly to apply, Congress would have no choice but to issue its constitutional Call.

But probably few States are all that interested in convening a "general convention"....

On the other hand, we have States vitally interested in sending a Balanced Budget Amendment to the Constitution out for State ratification. Their number has most recently been "aggregated" at 28. That leaves another 6 states to go, before Congress is impelled to issue its CALL.

I really don't understand, Jacquerie, why you find anything "unfair" in any of this. We have Article V, we have history, we have precedent, to go by.

I just hope, and encourage you, not to lose heart, not to lose morale over this. Congress does not sit as critics of Applications, or judges of their content or merit. I gather it might feel that it has no obligation to act at all, unless and until 34 States Applications aggregatable as to general subject matter have piled up on the desk of the Clerk of the House....

[Bill Walker's] argument was that aggregation was unconstitutional, and Congress should have called a general convention sometime around 1895.... But before Walker began his effort, he reached out to the attorneys general in all 50 states by letter. Each and every attorney general showed no interest in forcing this issue....

So Bill Walker was arguing that a simple numerical count of State Applications, without regard to subject matter at all, is sufficient to trigger an Article V CALL from Congress. And was subsequently shot down by the Court for this line of reasoning.

Note bene: If the people have to act through their states — as the Constitution seems to require — then they better clearly tell their respective state representatives what it is that they want.

I imagine few would want to base Congress's CALL for an Article V COS on the basis of a "general convention." So far, only four States have applied for a COS on "general convention" grounds. Another 30 would be needed for this sort of Application to become effective.

Still, if Congress has 34 State Applications for same, Congress absolutely could not fail but to make a CALL on that basis — the basis of "aggregation" of closely similar States' complaints.

The 400+ State Applications received so far are all over the lot of subject matter. For the purposes of "aggregation," it gets even more complicated from there, in that it is clear that States making applications might — and have — rescind[ed] their prior applications, maybe to re-apply under different language, or maybe not to re-apply at all.

So We the People, though we know we have Article V power, working through our respective States, have no clue how to exercise it in a manner that can achieve the result we hope for. UNLESS we exert pressure on our State representatives, who alone can issue an Article V Application.

Don't anyone blame Congress for your dissatisfaction WRT the Article V COS question. Look closer to home.

Beyond that, take a look at the "pre-convention" preparation that is being done by the American Legislative Executive Council. They take the Article V COS opportunity deeply seriously, and are doing all in their power to prepare for one, orderly.

See the recent Georgia Application, for a COS around the subject matter of federal vs. state powers, fiscal responsibility, (including the subject matter of a balanced-budget amendment), and federal term limits. Georgia has been joined by three other States so far, in this particular manner of "addressing" the subject matter of a hoped-for COS. That leaves another 30 States needed, to impel this thing to be launched from Congress.

Concurrently, Georgia also has an Application for a CALL for a COS on the subject matter of a Balanced Budget Amendment. Twenty-eight States have been officially "aggregated"on this subject matter, leaving a deficit of only six States before Congress MUST act.

Methinks Georgia is an amazingly good member of the American body politic, and an example to other States.

And I thank the good people of Georgia for that being the case.

But I do believe that the Constitution calls for more than that. There is a federal interest — as delegated by We the People — that needs to be taken into account, in order to fully understand, and appreciate, the genius of the Framers's design, the order of public life that they, in their wisdom, thought most desirable, given their wise understanding of the vagaries and perplexities of basic human nature.

I think you put too much on the glory of the federal government.

Day to day governing was to be done by the states, the sovereign states. Sovereignty meant that what one state chose to do, another could decline to do. Article IV full faith and credit was meant to ensure this, that what one state allowed would not be held against a citizen while in another state.

The federal government is demanding homogeneity amongst all the states, decreeing one set of laws that all must follow universally. This goes far beyond the constraints of limited powers, few and defined, that the states delegated to the federal government.

Above all, it seems they worried about a popular majority, driven by the passing passions of the time, in the interest of faction, would perpetrate injustice on minorities.

Only insofar as federal law was made, pitting the House of the People against the Senate of the states. But it does nothing regarding how each sovereign state makes its own law. The laws in one state make no regard for the laws in other states. California is free to be passionate to excess about their environment while North Dakota is free to encourage maximum oil fracking exploration and production.

It seems to me that Article V tries to obviate that possibility, by requiring popular dissent to be channeled through the States, in an orderly, as much as possible consensual manner.

It seems to me that the Article V Convention of States was to be that channel, allowing the states the orderly process of debate and proposal in a way that preserves their sovereignty. If there is an issue that is so obvious that popular consent is there, then simply instruct Congress to use Article V to propose the amendment. If there isn't yet consensus, then what other medium is there for states to meet outside of an Article V convention to gain that consensus so that they can meet your high bar of aggregation before being allowed to have their convention?

I say again that forcing a supermajority of states to meet an arbitrary definition by Congress of what constitutes a same-subject application serves to invert the relationship between the sovereign states and the Congress they created. The proper order is that when a supermajority of states decides that they want to meet in Convention, for any reason, they instruct Congress to issue the call to all of the states to attend.

Congress acts as the servant of the states, not as the master who decides what is sufficient and appropriate.

-PJ

But I do have to object to your saying that the aggregation rules are "mine," that it is I who imposes "my" high bar of aggregation.

Objection sustained. I should not have personalized it. You have been the strongest proponent for that point of view in these threads, but it is not "your" rule or high bar.

From your link:

Maintaining custody of the state legislatures' applications
If one considers that applying for a convention is a constitutional power of the several states, should the states have the burden of managing the counting of applications? This viewpoint reduces the role of Congress to collecting applications and verifying claims by states that the applications included by the states allow the convention being applied for. If that claim is correct, Congress must call a convention as specified by that claim. Another point of view holds that Congress must maintain custody, and keep an up-to-date tally, of the state legislatures' applications.

I go back to my hypothetical from the last thread. In the year 1800, was it really the intent of the Framers that the southernmost state, Georgia, keep up a dialog with the northernmost state, New Hampshire, separate and distinct from their interactions in Congress? Was Massachusetts supposed to find out on its own that South Carolina applied for an Article V convention?

The answer, of course, is no. That's why Congress, centrally located, was designated to be the custodian of the process. It was far easier for Congress to inform its own members of an Article V application from a state, and then the state delegations would relay the news back to their respective governments.

The distance from Savannah, Georgia to Concord, New Hampshire is l,075 miles. Imagine if these two states had to first agree on a same-subject amendment proposal before either submitted an application to Congress for a proposing convention. How many round-trip delegations would that require? Now multiply that number by at least three other states. Is that really what the Framers intended to happen?

Doesn't it make more common sense that the Framers of 1789 intended the proposing convention to be the place where amendment ideas were presented, debated, amended, and proposed to the states? Isn't this more likely than expecting nine states to engage in a series of n-way discussions over thousands of miles of dirt road horse-drawn delegations spanning months or years just to determine if there is same-subject interest before even considering an application?

I don't think the Framers had a notion of aggregation, a simple counting of applications received was enough to call the states to convene.

-PJ

I don't think the Framers had a notion of aggregation, a simple counting of applications received was enough to call the states to convene.

Hi PJT! In my research of Article V COS I came across a highly respectable article that completely explains and justifies your point of view (which differs from my own). That is, that the two-thirds-of-the-States “quorum” necessary to COMPEL Congress to CALL an Article V Convention of the States for the Purpose of Proposing Amendments to the U.S. Constitution is established by simple numerical count of State Applications, rather than by aggregation as to basic subject matter or purpose of the various States’ Applications. Truly, I appreciate the argument presented at this link: It is a model of Aristotelian logic (which always moves from given presuppositions to rational conclusions), and I’m a big fan of Aristotle.

The only defect of this line of reasoning (and to me it is a grave one) is that it is entirely detached, divorced, from actual American historical experience and precedent. Please consider these points:

(1) There has been only ONE Convention of the States ever called in American history, and that was the very first one: The Philadelphia Convention of 1789.

Notwithstanding all the difficulties of travel and the crude state of communications at the time, nine States showed up at that Convention — 9 of 13 = ~70 percent of the States, more than satisfying any two-thirds requirement — and those States showed up with a common purpose in view: To remediate defects in the Articles of Confederation, so to strengthen the national union of sovereign States composing a fledgling country, beset will all kinds of domestic and foreign problems. And the then-congress established under those Articles authenticated and legitimized this purpose, and issued its CALL for such a Convention. Which eventuated in the U.S. Constitution itself, shortly ratified by 100 percent of the States, far surpassing the three-fourths requirement. (Rhode Island was the last hold-out.)

This first Convention sets a very high standard of what we can hope to expect from an Article V COS. It was and still is ultimately an extraordinarily potent model of how a people can effectuate peaceful change while remediating threats to the nation, for the purpose of protecting its own well-being, and that of its progeny.

So, here we have a model of purposive activity being conducted by a multiplicity of States to achieve their common well-being.

In what way can a simple numerical count of State Applications be relevant in such a situation?

(2) Another main point I’d like to make is that, whether we like it or not, CONGRESS historically has never given any cognizance to the “simple numerical count” theory. Indeed, Congress itself has given us all the evidence we need to understand that, historically, they work according to the “aggregation model.”

As evidence, may we revisit the history of the Seventeenth Amendment, calling for the direct election of Senators? Evidently, Congress subscribed to the idea that a simple numerical count did not cut the ice on the question of eligible State Applications, rather subject matter did. They watched, as States’ Applications piled up under precisely this “subject matter.” From one source I read, there were 32 State Applications on precisely this subject matter at the time, with another two States on the very brink of making the 34-state quorum that would leave Congress with no choice but to CALL a COS.

So what did Congress do? It pre-empted the entire State COS effort, by taking up the proposed [single subject] amendment into their own hands. In the nick of time, as it were. One infers that Congress wanted to “federalize” the States’ concerns, by proposing an Amendment to the Constitution from federal constitutional sources; i.e., from the federal Congress itself.

In this way, Congress sought to confine to itself the privilege of proposing and ratifying amendments to the Constitution — by obviating the constitutionally equal power of the States under Article V to do the same.

One might view this as the defense of Congress against challenges to its own institutional powers. The Framers themselves anticipated this sort of thing. But their idea of constitutional order was premised on the natural order of things. Preeminent to their understanding of a just and vibrant public order was the principle of subsidiarity.

Subsidiarity is an organizing principle that states public matters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority. 

Notwithstanding, my point is, historical precedent shows that Congress “aggregates,” arguably on sufficient constitutional grounds, without respect to a simple arithmetical tally. And I don’t think this necessarily makes them villains, or opponents of human natural or constitutional liberty.

As a political realist rather than any kind of political ideologue, I think we need to engage the world as it is, not the world as we hope it ought to be, according to our own personal preferences and wishes.

But of course, I can only speak for myself in such matters.

What is clear to me is that only four States have ever applied for a “general convention” COS. Presumably, their Applications are being “aggregated” for Article V purposes.

But why call for a “general convention” in the first place? This is not some kind of a meet-and-greet frat party. Without common intent expressed by the necessary quorum of the sovereign States, what could such a putative COS mean? And where could it end up?

But if you want to see evidence for your own view, dear PJT. Please check out the Wisconsin COS Application of 1929. I gather three other States have so far joined in this demand for a General Convention.

In short, the Wisconsin Application avers that a simple numerical count of State COS Applications is sufficient to force Congress to CALL a COS. But reality strikes here. If that were true, Congress would have been COMPELLED to CALL a COS as early, or even earlier, than 1895. That has not happened.

From this I gather that Congress is not under any constitutional obligation to simply tally up the number of State Applications, and CALL a COS on the basis of simple addition. If a convention of States wants to amend the federal Constitution, they best help their own cause by stating exactly what it is they wish to reform and redress.

And I daresay, if State Applications conform as to basic language and objectives, there is no way that they can be considered as “non-aggregatable” for the purpose of forcing Congress to issue a CALL for a COS.

Just some thoughts, dear PJT!!! I am so very grateful to you for sharing your thoughts with me!

Thanks for the links. I enjoyed reading them very much.

(1) There has been only ONE Convention of the States ever called in American history, and that was the very first one: The Philadelphia Convention of 1789.

For me the biggest difference between the convention of 1787 and now is that in 1787 there wasn't a ratified Constitution already in place with a defined amendment process. They were making things up as they went. We have a Constitution in place that must be observed. We have a federal government already in place (my so-called perpetual convention for the purpose of legislating, as opposed to a convention for proposing amendments.

After reading the record of the first Virginia application, Congress was debating whether to take up debate as the applications came in, or wait for "similar" applications before taking it up.

Several thoughts here.

First, the point of debate was the mandatory function of calling the convention. If Congress was mandated to do it, then there was no need to "take it up for consideration," they said. If they were to take it up for consideration, it would have to be before the mandatory number were reached. This supports your example of the 17th amendment, and on this I agree. If Congress sees a plurality of applications piling up, they are well within their rights to exercise their own Article V power to propose amendments. I do not, however, think this negates the states' call for a convention, just because Congress thinks it got ahead of the issue. The states should still meet and decide on additional amendments, or even a repeal of Congress' preemptive amendment.

Second, the use of the phrase "similar applications" in the record of the Virginia application debate does not, to me, mean receiving applications for a similar subject. I think they simply meant "similar" as in other Article V convention requests.

I think the motivation for the Article V convention is that people are fed up with "the world as it is," and want a return to "the world as it ought to be." To do otherwise is to reward Congress' unconstitutional avoidance of states' coequal Article V power. We're already seeing their avoidance of their treaty power, of their budget obligations, of their spending origination separation of power. Are we just supposed to shrug it off as the new normal, as the world as it is now? What happens if the President should decide to run again, or to not vacate after 4 years? Is that the world as it now is?

The point of the Article V convention is to restore it to how it ought to be, by the states that have the power to demand it.

-PJ

Thank you, PJ, for your beautiful and eloquent essay/post! It appears we are mainly standing on the same ground, though we might quibble about details.

You wrote:

I think the motivation for the Article V convention is that people are fed up with "the world as it is," and want a return to "the world as it ought to be." To do otherwise is to reward Congress' unconstitutional avoidance of states' coequal Article V power.... Are we just supposed to shrug it off as the new normal, as the world as it is now?... The point of the Article V convention is to restore [the national government] to how it ought to be, by the states that have the power to demand it.

Two thoughts. (1) Beware of political "oughts" in general. The "ought" of a far-left Progressive political ideologue is usually the very inversion of the "ought" of a constitutional conservative. We are living in a divisive time precisely because the people are finding it difficult to reconcile these competing "oughts." FWIW I think that the perplexity of the people WRT such matters is the result of the fact that most Americans are historical illiterates. Very few know anything about American history, in particular the Revolution and Founding Period, and the absolutely "exceptional" production of the U.S. Constitution which resulted therefrom.

But as they say, this is no mere "accident." The Left Progressive movement — so effective in transforming American institutions over the past 100 years, especially including public education — really can't prosper unless and until history can be abolished from the public mind. History just has too many "inconvenient facts" that mitigate against the satisfaction of utopian ideals. So: Just get rid of history altogether. The latest incarnation of this progressive urge: the Common Core "curriculum," which is being shoved down the throats of the sovereign States, kicking and screaming.

(2) You and I both see that such "progressivist" pogroms against the American civil order cannot succeed unless and until the Sovereign Powers of the several States guaranteed by the Tenth Amendment have been totally, unconstitutionally usurped by, and consolidated, in Washington, the "national" government. You are so right to notice that the balance of distributed power under the U.S. Constitution is a power-sharing accord as between the national government and the several States. Powers not delegated by the States to the national government are the retained powers of the States. That is to say, MOST of the powers necessary to the proper functioning of a just civil order were left to the several States, the functionaries of the will of their respective citizens. Only a thoroughly deranged and corrupt national government would trespass on these retained powers.

You were also so right to observe: "The point of the Article V convention is to restore [the national government] to how it ought to be, by the states that have the power to demand it."

But the question next becomes: What strategy and practical tactics can the States employ to secure the convening of an Article V Convention of the States for the Purpose of Proposing Amendments to the U.S. Constitution?

IMHO, working from historical evidence, your simple "arithmetical count" of State Applications doesn't cut it in meeting the two-thirds of the States requirement. If this standard were so, Congress would have been compelled to CALL an Article V COS no later than 1895. That did not happen.

What is evident from past historical experience is that Congress goes beyond a simple arithmetical count of State Applications. It classifies State Applications by subject matter. The example I gave in my last — which eventuated in the Seventeenth Amendment — is all the proof I need.

But at the same time, this does not mean that Congress is weighing in on each and every State Application, as to its "merits." To smile on some, and frown on others. Congress has no such constitutional role.

That is not the way the process works. Rather, State Applications are tendered to the Clerk of Congress, who then dutifully records the Application in the Congressional Record. This is the only public notice given of a State Application. Once posted there, it is quickly forgotten by everybody, especially Congressmen.

This has been the status quo. Until very recently, and I am heartened by this: Under Kevin McCarthy and John Boehner — both personae non grata among Republicans these days — House resolutions passed mandating the taking of the tally of State Applications, from Day One to Date, and to straighten out the record of same (taking into effect aging problems, or State recessions), so to establish a "current count" of Application issues on related subject matter historically vital to the applying States.

So far so good. BUT — it is clear that the aggregation issue remains preeminent. And lawyers will be involved in making determinations as to the "relevancy" of State Applications on any given issue.

So, what to do??? [It so often seems to me that lawyers help nobody but themselves and their class. This is as close to cynicism as I ever get. But there it is....]

I figure the best way to meet this sad state of affairs, and defeat it, is to have State Applications all contain the same basic "mission statement." In identical language. If the language is identical, that leaves little room for lawyers to "parse the language."

In order to defeat the lawyers here, I put up as my model the recent Georgia Application. It calls for an Article V COS on the basis of common subject matter, boiling down to three issues: federal fiscal issues; states' constitutional rights; and term limits for federal officers.

It also has the genius to state that its Application is not time-limited in any way; and that all other State Applications reflecting the same mission statement must be aggregated with itself for the purpose of establishing the 34-state "quorum" necessary to FORCE Congress to issue a CALL for an Article V COS.

WRT the Georgia Application, another three States have joined, and submitted Applications devoted to the three subject-matter areas delineated by Georgia. We shall denote this as the "Georgia mission statement."

My point is, if the "mission statement" of States' Applications is identical, then I don't see how lawyers joined to the Clerk of Congress have any logical purchase to split hairs. IF State Applications might vary as to their "preamble" language; that is all the "wherefors" and "wheretofors," as long as the mission statement is identical, maybe down to the last comma and period, there is nothing that lawyers can do to find an alternative explanation of the language. Since Congress has a history of "aggregating," such an understanding of basic language would be so clear-cut that lawyers could not be regarded as having anything further to do.

And wouldn't that be nice???

A final thought. I seemed to get an idea from your last that a "political realist" is someone, by your definition, who constantly bends to the vagueries of "the times."

Do not ever say that about me, a self-confessed political realist! Rather say that I am an old dinosaur, who remembers and cherishes the foundations of the exceptional American Order, wrought by geniuses, in perpetual defense of human Liberty under Law.

We live in "interesting times." But we should never forget "where we came from."

Thank you ever so much for writing, dear PJ!

I don’t believe there is an office called the “Clerk of Congress.” There is the Clerk of the House of Representatives, which is part of the Speaker’s office.

At various times in our history, both applications for a Convention of the States and state ratifications of constitutional amendments were submitted by the states to the Secretary of State or the Clerk of the House. In more recent times, Congress has passed that responsibility to the office of the Archivist of the United States.

You are correct that once things go into the Archivist’s office, they are forgotten until a certain threshold is reached. It’s an internal procedure of the Archivist’s office to communicate with Congress by official memorandum only when two thirds of the states apply for a Convention of the States or when three fourths of the states ratify a constitutional amendment.

This led to two interesting incidents, one in each category.

In 1983, Gregory Watson, a staffer to a Texas state senator, was doing research on constitutional amendment proposals that had been passed by two thirds of both Houses of Congress but never ratified. One was known as Madison’s Salary Grab Amendment, which had been part of 12 amendment proposals that Speaker of the House James Madison had composed in 1789. Ten of the 12 were ratified and became the Bill of Rights. Over the centuries, ratifications for the Salary Grab Amendment slowly piled up in a desultory fashion, but nowhere near the necessary three fourths majority.

Watson quit his job and went around the country holding seminars for state legislators delving into the various amendments sitting out there awaiting ratification, with an accent on the Salary Grab Amendment. Slowly but surely, ratifications began to pile up in the Office of the Archivist.

No senator or congressman was interested enough to give the Archivist a phone call – actually, it would have been made by some lowly staffer – to find out if anything was brewing under the surface. The Archivist was under no compulsion to communicate with Congress until a threshold was reached. And then one day in 1992, Madison’s Salary Grab Amendment hit 38 ratifications, and the Archivist sent a memorandum to congressional leadership that there was now a 27th Amendment in the Constitution. Congress needed to perform the customary ritual of issuing a Joint Resolution welcoming it into the Constitution and officially communicating with the President and the Supreme Court that a new amendment existed.

Congress went berserk. It had been blind-sided because no one had sufficient interest in the subject to call up the Archivist and ask if anything was going on in the background. Congressional leadership wrote a memorandum to the Archivist demanding that his earlier memo be rescinded because the earliest ratifications were “stale” and had to be done over. The Archivist wrote a memo to Congress quoting every Supreme Court decision concerning the nuts and bolts of Article V and stating that the 27th was validly ratified.

There was considerable sentiment in Congress for suing the Archivist in federal court to get a definitive opinion on the matter. But 1992 was an election year with a strong anti-incumbent bias, so Congress decided that discretion was the better part of valor, swallowed hard and issued the necessary Joint Resolution welcoming the 27th into the Constitution.

The second incident happened only last year. Applications for a Convention of the States to consider a balanced budget amendment had reached the threshold of 34 states. The Archivist sent a memorandum to Congress notifying it of the situation, but noting that there was some confusion about states that had rescinded their applications and rescinding states later issuing new applications. The Speaker’s office asked for an audit of all applications to be conducted by House legal counsel and the Archivist. That audit showed that there were only 26 applications extant, and this year two more states piled on to make it 28.

Congressman Steve Stivers (R-OH) took note of Mark Levin’s and ALEC’s effort to get the states to apply for a Convention of the States to reallocate power between the federal government and the states as stated in Georgia’s application, which now has three more states added to the mix. Stivers understood that the internal procedures of the Archivist’s office create situations where Congress doesn’t know what is going on until it’s too late. (Granted, it’s only laziness that keeps Congress in the dark.) Stivers got Congress to agree to bring the Clerk of the House back into the mix in sync with the Archivist. This year the Clerk and the Archivist met and synchronized their spreadsheets on the issue of applications for a Convention of the States. This was a good move on Stivers’ part because now Congress will not have the excuse of ignorance that it had in 1992.

The Georgia application now needs 30 more states to pile on to force Congress to call a Convention of the States to consider amendments proposals that would codify Georgia’s language. Few state legislatures meet year round, and I expect the next group of states to pile on when they convene this January.

I don’t believe there is an office called the “Clerk of Congress.” There is the Clerk of the House of Representatives, which is part of the Speaker’s office.

Thank you, Publius, for clarifying this. I'm grateful to you.

In recent times, the Clerk of the House and the National Archivist have been directed, by legislative resolution, to "compare notes" closely, to use a common "spreadsheet" to tally valid State Applications WRT the invocation of an Article V COS.

The probable reason for this is that the 27th Amendment passed completely under Congress' radar screen, without any notice, let alone any active help from them at all.

It's not a terrible amendment, in terms of constraining congressional power. It only says that Congress cannot vote itself a pay raise effective during the term of its sitting. Though members of the next Congress would be eligible for such a pay raise.

But what the 27th Amendment does is to nip around the borders of Congressional privilege and power, to place a limit on it, in even such a really inconsequential way. Congress is jealous of its institutional powers, and will defend them down to the nonce.

If Congress was surprised by the ratification of the 27th, we just have to chalk it up to congressional sloth: They should have known this was brewing.

Which is why, in a darker mood, I wonder whether Congress' sudden interest in the current tally of State COS Applications is because of their fear of a Balanced Budget Amendment coming from the States. I am reminded of the history of the Seventeenth Amendment, calling for direct election of State Senators. I gather that some 32 States had filed Applications on this "single subject" amendment, with another two States on the verge of doing so.

So, Congress co-opted the States, deciding to propose what would become the Seventeenth Amendment within its own body, thus to give a federal resolution of the problem, neatly obviating the necessity of CALLING an Article V Convention of the States. Thus retaining power "in Washington," and not in the several States, working together for a common purpose.

The issue of a balanced budget amendment to me looks ripe for a repeat of this process of Congressional co-optation of State powers. So far, there are 26 State Applications that have survived the culling of the Clerk of the House/National Archivist. That means another 8 States to go.

Question, dear Publius: Do you think there is a snowball's chance in Hell that the four most recent State Applications, on the "Georgia model," are "aggregatable" with the 26 States with valid Applications for a BBA?

The Georgia model application (my characterization) addresses three main subject areas in what I call its "mission statement": (1) the distribution of powers as between the federal government and the several States; (2) federal fiscal responsibility; and (3) term limits for federal officers.

Question: Is (2) above "aggregatable" with State Applications for a Balanced Budget Amendment, when the Georgia Application clearly puts such an amendment within its legitimate scope?

At this point, my best sense in answering this question is: NO. Congress will strain every gnat to hold onto its current powers and privileges, and this means the States' role in our constitutional order will be tenaciously obviated by Congress as much as possible.

So, the BBA still needs another 8 States to make the Congressional CALL for an Article V COS effective. If the history of the Seventeenth Amendment is any reliable guide, I would expect Congress to wait until the last possible moment to act on a BBA, under the pressure of State Applications (resolutions); and then, on the brink of confrontation of federal and State powers, will take it upon itself to pass a BBA, and send it out to the States for ratification. Thus to take all credit for it, with no thanks whatsoever to the States who brought the issue to the forefront of public concern in the first place.

Thus to maintain the fiction that all power resides in Washington, and not in the States where We the People live.

Dear Publius, you are a treasure of reason and historical knowledge. Thank you so very much for all your excellent work hereabouts, at FR!

First, let’s work on some history concerning the 17th Amendment.

For years, the House passed an amendment providing for the direct election of senators, but the Senate always balked. Senators liked the cozy arrangement they had with the corporate interests that owned their states. So state legislatures escalated by applying to Congress for a Convention of the States to formulate such an amendment. In 1912, the two thirds threshold was reached.

What senators feared was that a Convention would write the amendment to require immediate implementation, i.e., the entire Senate would have to be elected under the new paradigm all at once. The Senate wrote the amendment to phase in election by the people once ratification was complete. The House quickly passed the same wording, and the amendment was sent out to the states for ratification. It was ratified in record time.

But the two thirds threshold had been reached. Congress was under compulsion to call a Convention to consider this topic. How Congress got out of it was quite clever.

Several states had “discharge clauses” in their applications. This clause stated that if Congress wrote its own amendment on the topic, the application would be considered discharged. Enough states had discharge clauses in their applications that the threshold now dipped below two thirds, thus absolving Congress from calling a Convention. Without those discharge clauses, Congress would have been in a major bind.

...26 states...

Actually it’s 28 now. Two more states piled on this year. Six more states, and Congress will have to call a Convention to consider a balanced budget amendment.

Concerning your question about aggregation, Congress will not aggregate the 4 applications with the Georgia language with the 28 applications for a balanced budget amendment. They won’t be aggregated in either direction but will be considered separate topics for tabulation purposes.

As long as we possess the world’s reserve currency, a balanced budget amendment would be a bad idea. Vast and increasing numbers of dollars are needed every day to support the $4+ trillion per day that changes hands in the world’s money markets. We have waged endless war and increased entitlements so that those dollars can be created to fill the world’s money pool. If we were back on the gold standard, we wouldn’t need a balanced budget amendment because the gold standard itself imposes an iron discipline. Only if we lose the status of possessing the world’s reserve currency would we require an amendment to end our profligate behavior.

If we were back on the gold standard, we wouldn’t need a balanced budget amendment because the gold standard itself imposes an iron discipline. Only if we lose the status of possessing the world’s reserve currency would we require an amendment to end our profligate behavior.

Indeed. But consider that both Russia and China and other nations within their respective orbits are working overtime to find ways to kill the U.S dollar as the world's reserve currency.

Were they to succeed, the American standard of living would instantly decline by something like 25 percent, or more. Not to mention that the federal debt would not be able to be "monetized" anymore. The American people would then be presented with the alternative of long-term self-denial, of grinding penury to pay off the incredible debts already sustained, $18.5 trillion and counting. Or declaring national bankruptcy. I don't know what would happen then. Maybe a massive, national FIRE SALE??? Wherein the main stock of Americian capital assets would be transferred into foreign hands???

In piling up national debt like this, maybe we the people thought we could just send along the demand for repayment to future generations, and require them to pay it off.

Thomas Jefferson in particular took a very, very dim view of a generation not satisfying its own incurred debts, with the view that the next generation would be there to pay them off.

We are talking of our children here, of encumbering them financially even before they reach the age of majority, jeepers even before the date of their birth. And subsequently, their chlldren, and your grandchildren, and theirs in turn, etc.

The above is a tad off-topic. Just had to get it off my chest.

Thank you ever so much, dear Publius, for shining light on the discharge issue, and suggesting other ways that State Applications for an Article V COS might get derailed, disbarred from the "aggregation" tally....

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