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.
Maintaining custody of the state legislatures' applicationsIf 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
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!
Thumbs up!
I would only add in support that our Congressmen stand for election every two years rather than one due to the very same, awful transportation facilities of the 18th century you cite.