You may remember the TV series “The Paper Chase”, where John Housman as Professor Kingsfield tells his class, “You come in here with minds full of mush, and if you survive, you’ll leave thinking like a lawyer.” Walker’s problem was the same as mine: neither of us had ever been to law school, and we approached the law as laymen, without an adequate understanding of custom and precedent. Congressman Billybob, a constitutional lawyer based in North Carolina, was kind enough to help me think like a lawyer. He also helped ground me in things like precedent, the Principle of Agency and the history of this topic. Had I met Billybob before 1999, I would have bailed from Walker’s project.
Before 1992, Congress set unofficial rules about the criteria for calling an Article V Convention. There was the single-subject criterion and the contemporaneousness criterion. Congress never codified any of this into law because the arbitrariness of it gave Congress more power. Once in the late Sixties and again in the late Eighties, it looked like a single subject might receive convention petitions from 34 states, and Congress went into hysteria trying to determine if it should codify things under the law. Both times the crisis passed, and each time it passed when only 32 states petitioned, and the movement for a convention ran out of steam.
Then the 27th Amendment, proposed in 1789, was ratified in 1992. Congress sued the Archivist of the United States, arguing that the earlier ratifications weren’t “fresh” and needed to be done over. The federal court invoked Coleman v. Miller and told Congress that the federal duty (ratification) had been executed once, which was sufficient. Congress had not inserted a time provision into that amendment in 1789; therefore there was no clock under which ratification had to be accomplished. The court, however, said that Congress could regulate the amendatory process as long as such regulation did not violate the clear language of Article V. Congress’ attempt to appeal the case to higher courts failed.
This is where two separate currents met.
An ABA report from 1965 was aimed at determining whether the “One Man/One Vote” ruling applied to an Article V Convention. Everett Dirksen codified its recommendations into a bill, and when he died, the bill was passed to Sam Ervin, who in turn passed it to Orrin Hatch when he retired. Hatch got it included in the 1992 reforms.
Congress set the rules for petitions to request a convention and codified the single subject criterion it had observed for two centuries. It also codified a contemporaneousness provision to make sure it didn’t get caught unawares like it did with the 27th Amendment. Walker believed the 1992 law was unconstitutional, but I disagree.
To understand why the single subject criterion is constitutional, you have to understand the Principle of Agency. Let’s say you hire me to sell your car, and we have a legal agreement in which I am your agent for that sale. As long as I sell your car, I am within the law. But let’s say I sell your house instead. In doing so, I have violated the agreement, engaged in fraud, and the sale of your house is null and void. You will sue the pants off me for breach of contract, and I may also end up doing time in a state prison.
An Article V Convention is an agent of the states, and the purview of the convention is defined by the language of the petitions for that convention. If the convention goes outside that language, it exceeds the role of agent and violates the law. The 1992 law codifies this, forbids this and has safeguards to prevent this. This is why an Article V Convention called by Congress to address a balanced budget amendment cannot address abortion, gun control, or any other subject. For that, you need 34 states to petition to address that particular subject.
You cannot lump together petitions for a convention that are based on different subjects. It doesn’t matter whether there are 700 or a million petitions sitting out there. Until you have 34 states petitioning for a single subject, you don’t reach the threshold for calling a convention. This is the heart of Walker’s case, and this is where he erred.
Concerning a general convention permitted to address all subjects, two states petitioned for this in 1789 because they didn’t like the Constitution and wanted to start over. Because petitions filed before 1992 are still valid – and always will remain valid – those petitions are still on the record and are immune from the 1992 law’s seven year sunset provision. If 32 more states pile on and demand a general convention, then Congress would have to call one.
As of today, the 32 petitions for a balanced budget amendment all pre-date 1992 and are still considered valid. Recently, two states, Ohio and Wyoming, considered piling on to make #33 and #34, but the legislatures rejected the idea. Had they been the final two states to petition, Congress would have been forced to call a convention to address that subject, and that subject only.
This is where even the great Phyllis Schlafly got it wrong. She and others created hysteria claiming that those two states would open up a general convention that would permit the Left to write a whole new constitution. I spent weeks going from thread to thread trying to stamp out the fires, and I was horrified at just how many FReepers knew nothing about their own Constitution. This is why I lost my temper at the individual who posted the thread based on Walker’s website and its erroneous legal thinking. I have since apologized to him in a FReepmail.
So let me give you the bottom line. You have a reasonable shot at an Article V Convention for a balanced budget amendment because only two more states are required to pull the trigger. But there will be no general convention unless 32 more states pile on to those two petitions left over from 1789, and this time the seven year rule delineated in the 1992 law will apply to those 32 new petitions.
As far as challenging the constitutionality of the 1992 law, only a state would have standing. Yes, I remember Walker’s logic for his having standing, but it was a legal fantasy.
Bottom line: all the old state calls for a Convention on any subject (including a rejection of any World Court) are nullities.
John / Billybob