PROPOSED CONVENTION RULES (Article V)

Convention of States Project ^ | September 2015 | Convention of States

[Jacquerie]

Federalist #85 was the wrap up to an immense effort.

Hamilton therefore touched on many items in summary fashion.

<>Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.<>

I believe he was carefully addressing a major problem with the Articles of Confederation, which were in force when Hamilton wrote #85, and was a major impetus to the 1787 federal convention in Philly, that being Article XIII which required thee consent of all states to amend the rules of the confederacy.

Twice, Rhode Island alone prevented amendments which would have allowed minimal taxation of imports for a period of years to pay down the enormous debts run up during the Revolution. IOW, as Hamilton lamented, Rhode Island's local interests trumped the national interest.

In the sentence before those you quoted, Hamilton wrote: “And of consequence all the declamation about the disinclination to a change vanishes in the air.” NY and VA had not yet ratified the constitution, and Anti-Federalists were making a major fuss over not only an imperfect constitution, but on that would be un-amendable. They were wrong until 1913.

[Hostage]

It’s not the lawyers that are holding things up, it’s the state legislatures.

If 34 of those legislatures pressed forward together, they could press Congress to call a Convention but they’re not doing that because they have 37 states who would rather work with the COS Project rules.

Congress won’t call it because the applications have streamed in so slowly on so many subjects expiring or never renewed that they are not compelled and more importantly the states today do not want a COS without rules and restrictions

[Jacquerie]

<>I just want to know where the requirement to agree on the amendments beforehand originated.<>

Crickets.

[Political Junkie Too]

But Hamilton still was not ruling out the idea of "local interest" amendments? He was just suggesting that it would be harder to get support from three-fourths of the states?

-PJ

[Jacquerie]

You are probably correct.

It wasn’t supposed to be too difficult to convene the states. Two thirds is high but not too high when there is general agreement the government needs fixing.

[Political Junkie Too]

Then the concept of "local interest" amendments goes against the idea of "same-subject" applications.

I wish more was written about Article 5 in the Federalist Papers. Perhaps there is more in the ratifying debates?

-PJ

[betty boop]

Article V is merely the acknowledgment of the right of the Sovereign People to continually correct any errors of any kind....

Absolutely TRUE; but to me, this truthful observation seems qualified by two things: (1) the Sovereign People do not act directly, but through the mediation of their States; (2) They cannot act at all, if their States do not make application to Congress for an Article V COS for the Purpose of Proposing Amendments to the U.S. Constitution. Article V elucidates the constitutional manner in which this must be done. Absent the congressional CALL, it isn't going to get done.

You wrote,

IMHO, and with history as our guide, congress WILL NEVER CALL A CONVENTION.... It is therefore the duty of the states to just do it. Exercise a societal and constitutional responsibility; meet in convention to turn back tyranny.

Well, certainly Congress has never issued an Article V COS CALL, at least not so far.

Meanwhile, we have Michael Farris pointing out that, so far in our history, there have been over 400 State Applications to Congress to CALL an Article V COS. These Applications have been all over the "subject matter" of the sovereign people's concerns, which have varied over time. The evident fact remains that State applications on different subject matter will not be aggregated for the purpose of establishing the 34-state threshold necessary to force Congress into issuing the CALL, without which any contemplated convention would have zero constitutional basis, standing, or effect.

"Aggregation" rules are not part of the facial text of Article V. But it seems to me the need for same is implied, and essential, on logical and common-sense grounds. In what other way can we find out whether the 34-state threshold has been met?

I propose a thought experiment, actually two.

The first would be something along the lines that you might warm to: Get 34 States to "call on" Congress to issue its congressional CALL to convene an Article V COS for the purpose of proposing amendments on the basis that this convention as contemplated would be a wide-ranging, general-purpose convention not limited to any particular subject matter going in. It seems to me they still have to get over the aggregation bar in some way. Maybe they could do that, by adopting virtually identical language in their Applications. Maybe something like, "This State is applying for an open COS not limited as to subject matter." If 34 States all said the same thing in their Applications, even if the Clerk of Congress and National Archivist are total morons, assuming they can read, they must recognize that identical language is identical language. If 34 States are using identical language, then how can Congress fail to aggregate them? Upshot: Congress "shall" issue its CALL. Possibly, this could work.

Or second, how about lobbying, urging our state representatives to make Application to Congress for a COS dedicated to the single topic of repealing the Seventeenth Amendment? That situation is a lot more limited and straightforward than a "general purpose" convention. Get 34 States to apply specifically on the the narrow-focus matter of repeal of the Seventeenth, using same language, and Congress must issue its CALL. "Same language" should ensure that all such Applications qualify for aggregation. The language of any State's Application itself might specify that its application shall be aggregated with the applications of all other States on the topic of repeal of the Seventeenth.

What would happen, under these two scenarios? It would be gratifying to find out.

In conclusion, though Article V does not require a COS to confine its scope to a "single topic," there has to be some commonality of interest of the States that goes beyond purely regional or local problems, and it is in their Applications that the States make this known.

Just some thoughts, FWTW. I'm struggling through this the same as you are, dear Jacquerie. Thank you ever so much for sharing your thoughts.

[Political Junkie Too]

Or second, how about lobbying, urging our state representatives to make Application to Congress for a COS dedicated to the single topic of repealing the Seventeenth Amendment?

Let's go back to my hypothetical posted earlier.

Back in 1800, the states would not have needed Congress to call for a single-subject CoS; they would simply have instructed their Senators to introduce a bill in Congress to propose the amendment. The other states would then have supported the bill or not.

Your "common sense" aggregation of single-subject amendments is really the other half of Article V's amendment process; single-subject amendments introduced by Congress.

The fact that today's post-17th amendment Congress has gone rogue doesn't change the original intent of the proposing convention: proposing amendments, not an amendment.

-PJ

[betty boop]

P.S. To All:

It does absolutely no good to complain about the (implicit) aggregation rule.

The real challenge here is to make the aggregation rule work for US — We the People of the United States of America, who on fundamental constitutional questions MUST act through our respective States.

[Political Junkie Too]

It does no good to complain about the treaty clause, either, or the spending origination power, or the budget requirement, or the uniform rules of naturalization, and so on. What other Constitutional power should we surrender?

-PJ

[betty boop]

Back in 1800, the states would not have needed Congress to call for a single-subject CoS; they would simply have instructed their Senators to introduce a bill in Congress to propose the amendment. The other states would then have supported the bill or not.

Ah! But there's the "rub": The original constitutional "architecture" that recognized such powers of the Senate was utterly destroyed by the Seventeenth Amendment. THAT order is completely gone, owing to a frenzy of populist reaction to the public corruption of the times.

These "progressive" populists evidently thought that a one-man-one-vote per citizen regime on any and all public questions was superior to the Constitution's plan, which called for institutions designed to mediate the effects of transitory public faction and frenzy. Such as the Senate — designed not to represent the people directly, but the several States, the ratifying parties of the Constitution.

The Seventeenth Amendment took a wrecking ball to the very foundation of the Constitutional vertical separation of powers as between the national government and the several sovereign States, by denying the States representation in Congress.

I think the Seventeenth is due for repeal. We have all seen its pernicious effects....

[betty boop]

What other Constitutional power should we surrender?

I don't know about you; but I'm not "surrendering" any. And I continue to find the U.S. Constitution a helpful and trustworthy guide in such matters.

[Repeal The 17th]

“...I think the Seventeenth is due for repeal...”
-
Amen.

[Jacquerie]

Hmmm. If I read your post correctly, We The Sovereign People have the right to frame, adjust, and otherwise amend our governmental structure as we see fit via our states as long as we get permission from Congress?

[trisham]

The Seventeenth Amendment took a wrecking ball to the very foundation of the Constitutional vertical separation of powers as between the national government and the several sovereign States, by denying the States representation in Congress.

I think the Seventeenth is due for repeal. We have all seen its pernicious effects....

***************************

Excellent post, betty boop. It seems that even back in the day William Randolph Hearst was using his newspapers to influence politics, and this was one of his interests.

[Political Junkie Too]

The Senate still retains its powers, it's just the controlling link to the state legislatures that is broken. That's why Senators no longer fear losing their seats and are free to go against the interests of their constituents.

That's why I say that the idea that Congress can thwart a convention of states by holding some sort of implied "same-subject" requirement over the states is just another surrender of power - this time it's the states' power to compel a proposing convention.

The 17th amendment changed the nature of Congress, but it didn't change the plain language of Article V, calling a Convention for proposing Amendments - plural.

Demanding a same-subject requirement just hands Congress a weapon to use against the states to prevent them from organizing, when no such requirement seems to exist in the Constitution or in the Federalist Papers writings.

-PJ

[Jacquerie]

The 1942 Supreme Court also found a non-existing implicit power for congress to regulate that which affects interstate commerce.

[Political Junkie Too]

At least they found the proper grammar when they ruled against Obama regarding recess appointments, when they held that "during the Recess of the Senate" meant the break between Congresses and not anytime they went home for the holidays.

Maybe they would do the same regarding a convention for proposing plural amendments?

-PJ

[betty boop]

We The Sovereign People have the right to frame, adjust, and otherwise amend our governmental structure as we see fit via our states as long as we get permission from Congress?

Oh for heaven's sake, Jacquerie, I said no such thing. Nor do I think such a thing.

Congress is subject to the same Constitution that the States are. It is not a question of congressional supremacy vis-a-vis the States. Both must respect and adhere to what the Constitution requires.

[betty boop]

The Senate still retains its powers, it's just the controlling link to the state legislatures that is broken.

But absent the controlling link to the state legislatures, what powers does the Senate legitimately exercise under the Constitution? The Seventeenth Amendment absolutely extinguished the entire raison d'être for the Senate as envisioned by the Framers of the Constitution — that the Senate is the representative body of the States in Congress.

And it's all been downhill from there.... Now it seems that the only people Senators "represent" is — themselves.