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Congress’ Present Duty to Call a Convention. (Part III)
Hamline Law Review ^ | Fall 1990 | Bruce M. Van Sickle & Lynn M. Boughey

Posted on 11/16/2014 9:44:12 AM PST by Jacquerie

Full title: Lawful and Peaceful Revolution: Congress’ Present Duty to Call a Convention for Proposing Amendments.

Article V figured prominently in the public debate on the constitution, which began immediately after adjournment of the federal convention on September 17th 1787.

30. James Madison praised the proper balance between ease and difficulty in amending the constitution. From Federalist 43 of January 23rd 1788, “(Article V) guards equally against that extreme facility, which would render the constitution too mutable, and that extreme difficulty, which might perpetuate its discovered faults.” IOW, setting the bar at two thirds to call amendment conventions was not designed to prevent their occurrence, yet demanding the consent of three fourths of the states to ratify WAS intended to make sure any changes were approved by a super majority of the people.

31. Soon thereafter in Federalist 49, Madison could be speaking to us today, for he posited what should be done if one branch of government went beyond its powers and encroached the authority of the others. While all power resides within the sovereign people, frequent appeals to them are certain to undermine the legitimate authority of the government and take the nation back to unstable times. Still, “a constitutional road to the decision of the people, ought to be marked out, and kept open for certain great and extraordinary occasions.” Article V was to serve this fundamental purpose, a peaceful means for the people to assert their sovereignty. It is there before our very noses, and should be used today to put the judiciary and executive branches back in their proper constitutional places.

32. In Federalist 85 of May 28th, Alexander Hamilton agreed that corrections to the new government were probably essential after it was put into operation. Whereas England had centuries to fine tune its system, ours would be put into operation all at once. Thereafter, its actual operation could be measured and if necessary, amended. He noted that amendments proposed either by congress or a state convention “would be a single proposition, and might be brought forward singly.” This precludes the presentation of amendments as a block, and should set to rest those who fear a “con-con” that overnight could set up a socialist frame of government. From the very first amendments submitted to the states, each was considered singly.

34. As for the assertion that congress would be able to block the state amendment process, Hamilton thought it without merit. Whenever two thirds apply, congress will be obliged to call a convention for proposing amendments. The words in Article V are peremptory; the congress shall call a convention.”. Unfortunately, Hamilton would be proved wrong, for after hundreds of state applications, congress refuses to call a convention.

35. This rational reading of Article V, that congress must call a convention on the application of two thirds of the states was evident at state ratifying conventions. On June 6th 1788 at the VA Ratifying Convention, George Nicholas responded to Patrick Henry’s assertion it would be too difficult to amend the constitution. Nicholas: “Had it rested solely with Congress, there might have been danger. The committee will see that there is another mode provided, besides that which originated with Congress. On the application of the legislatures of two thirds of the several states, a convention is to be called to propose amendments, . . . “

On June 25th, also at the VA convention, James Madison sought to put Anti-Federalist’ fears of an un-improvable constitution to rest. “They cannot but see how easy it will be to obtain subsequent amendments. They can be proposed when the legislatures of two thirds of the states shall make application for that purpose . . . “

TOPICS: Constitution/Conservatism; Government; News/Current Events
KEYWORDS: articlev; constitution; freepered
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Conclusion: Article V empowered congress and conventions of the states with equal authority to propose amendments. The two thirds hurdle is designed to promote stability, yet not deny the right of a free people to correct structural errors in their government. Today, a congress of our representatives unconstitutionally denies that right. Our frustration is evident every day at FreeRepublic. We are so fed up with a system that denies our legitimate power to peacefully secure liberty, that calls for less than peaceful alternatives are openly encouraged.

Article V now!

1 posted on 11/16/2014 9:44:13 AM PST by Jacquerie
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To: Jacquerie

In before the ping!

2 posted on 11/16/2014 10:06:28 AM PST by Repeal The 17th (We have met the enemy and he is us.)
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To: Resolute Conservative; VerySadAmerican; Nuc 1.1; MamaTexan; Political Junkie Too; jeffc; 1010RD; ...


Article V ping!

3 posted on 11/16/2014 10:32:54 AM PST by Jacquerie (Article V. If not now, when?)
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To: Jacquerie

IIRC this was last done to pass the 21st Amendment repealing Prohibition. A Constitutional convention bypasses a lot of local politics & it did so in this case (notice the 21st repealed the 18th but left up to the states the re-legalization of alcohol).

4 posted on 11/16/2014 12:07:24 PM PST by elcid1970 ("I am a radicalized infidel.")
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To: elcid1970; Jacquerie
First off, the 21st Amendment was proposed by the usual mechanism. Two-thirds of the House and Senate passed it and sent it on to the states for ratification. There was not an Amendments Convention on the topic.

However, Congress, as part of its Disposal power, sent it to state ratifying conventions, not state legislatures, for ratification. Each state held a special election to fill a state ratifying convention based on the makeup of its most numerous, i.e. lower, house.

A state ratifying convention is different from an Amendments Convention involving all the states.

5 posted on 11/16/2014 12:19:52 PM PST by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Publius

Thanks for the clarification. I must have been thinking of a state ratifying convention in each state; but this does bypass to an extent the entrenched powers in the state legislatures.

Would an Amendments Convention be of the same magnitude as a Constituent Assembly? proposes amendments & the latter meets to create a new constitution.

It was the Russian Constituent Assembly of 1918 that was dissolved by the Bolsheviks, touching off civil war & 70 years of communist rule.

6 posted on 11/16/2014 12:48:14 PM PST by elcid1970 ("I am a radicalized infidel.")
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To: elcid1970
The reason that Congress sent the 21st Amendment to state ratifying conventions was because the bootlegging industry had its tentacles into government at all levels. There was a legitimate fear that sending the amendment to state legislatures for ratification would have resulted in the illegal liquor interests sandbagging ratification and running out the 7 year clock.

For the remainder of your query, please read the following. It's pedantic, I know, but I post it at all these threads. It makes everything clear.


The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.


There are two ways to propose an amendment to the Constitution.

Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.


Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:

The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.


Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.

Forbidden Subjects:

Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.

Explicitly forbidden:

Implicitly forbidden:

I have two reference works for those interested.

The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.

Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers

The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.

Report of the ABA Special Constitutional Convention Study Committee

7 posted on 11/16/2014 12:53:52 PM PST by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Jacquerie

It’s crucially important that state legislatures and state delegations complete the process for at least one amendment to get it recorded on the history books.

An Article V path-finding exercise serves to establish successful protocols and order and to leave precedent for future generations to emulate as well as to raise awareness and confidence that this part of the US Constitution is entirely feasible and necessary.

In drafting the original 17th Amendment, state groups of voters organized an effort to invoke Article V and it was not taken seriously until it was evident that the final two states needed signaled they would be signing up within a few months. The problem seemed to arise that some states would not appoint their US Senators (bicameral conflict) and Senate seats remained empty. Why an amendment was needed in this context is a mystery as such states could have easily passed state laws or amended their constitutions with workarounds such as having the Governor appoint an interim US Senator if the legislature would not.

In any case what evolved was an elected person (US Senator) that was delinked from any state legislative concerns and who promptly became the target of oligarchs seeking political control of a federal chamber (which is what exists today). To have US Senators elected by popular vote is a joke as it creates a myth that somehow voters know who they are voting for versus the marketing, branding and packaging that is created for the public to consume. The result is an offering of Coke or Pepsi without revealing the inside ingredients. If it is impossible to revoke this right to vote for US Senator, then at least an amendment should be debated that allows state legislatures to recall wayward US Senators (McCain comes to mind).

The early 20th Century, a time in American history when such magical things called radios, horseless carriages, kinetoscopes (cinema), transocean telephone calls, flying machines and so many other modern wonders were spreading across the American continent created an ambiance of modernization that lured people into thinking it was time to update the US Constitution to solve problems that lingered since the founding. But ... the 16th, 17th and 18th Amendments, all of which were ratified in 1913 during the Presidency of Woodrow Wilson who promoted the amendments and encouraged their ratification, were the worst concoctions that Congress could devise. The generation of 1913 were too smart for their own good and the national attitude was reflected in the condescending arrogance of the Princeton academic snob that inhabited the White House. The public and its Congress overlooked the unintended consequences of this series of amendments: Congress never bothered to factor that the 16th Amendment would grow the US Tax Code into a monstrosity, nor bothered to assess how the 17th would disconnect statehouses from their US Senators, nor how the 18th would empower underworld groups to take over cities (Al Capone). And largely this was Congress’ fault as they were in that time the trusted source for bringing improvements to American government and society. They failed miserably.

But the Article V movement of today has the benefit of hindsight and it has the benefit that it is not subject to the hardened, inured and normalized corruption that takes place daily in today’s US Congress which seeks above all to preserve its status quo and gain positive albeit in many cases false media spin.

State legislatures and their legal, historical and economic functionaries have many more tools at their disposal to be well-versed in the ramifications of proposed amendments and will be careful via debate to foresee negative impacts that amendments will have both during the proposal stage and the ratification stage. Amendments may be thrown into the mix, bandied about, debated, struck down, revised, merged or separated but the debate will penetrate the American population like never before.

There exists an absolute need to examine how the 17th can be fixed if not outright repealed.

There exists an absolute need to repeal the 16th and enact the HR 25 Tax Code Legislation.

There exists an absolute need to have a serious debate and proposal over the federal government’s role in marriage, abortion and religious rights.

There exists an absolute need to seriously consider powers of the federal judiciary in the form of term limits or independent judicial review.

All the Levin amendments need serious consideration.

Importantly, plausible consequences of any proposed amendments must be thoroughly vetted before respective votes are taken.

And perhaps most importantly, the protocols of an Article V process must be thoroughly debated and tested because in effect they will be a blueprint for future generations.

Lastly, the debates must not be rushed as prolonged deliberation brings wisdom to bear on final drafts.

The effect on the US Congress will be an historical seismic event. Never again will they as a body assume that they have no outside competitors, no outside rivals. Statehouses and state delegations will appear as a heavy check on the role of the US Congress.

8 posted on 11/16/2014 12:55:12 PM PST by Hostage (ARTICLE V)
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To: Hostage
The effect on the US Congress will be an historical seismic event.

It will also be a critical check on the two-party duopoly, a genuine shot across the bow.

9 posted on 11/16/2014 12:59:10 PM PST by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Hostage
The 17th Amendment situation was different from what you described.

One day Congress was notified that the threshold had been reached for calling an Amendments Convention to discuss the direct election of senators. This caused panic in the Senate because senators were afraid that a convention would formulate an amendment that would require the election of the entire Senate by the people in one fell swoop rather than phase in the amendment by two-year senatorial "class". Accordingly, the Senate passed the current version of the 17th Amendment, and the House followed quickly.

But shouldn't an Amendments Convention been called anyway? After all, the two-thirds threshold had been reached.

It turns out that some petitions from state legislatures for an Amendments Convention to discuss the direct election of senators had a Discharge Clause. This clause said that if Congress passed an amendment to handle this topic, the state petition would be considered "discharged". Enough petitions contained Discharge Clauses to permit Congress to say that the two-thirds threshold had not been reached. This is how Congress weaseled out of calling an Amendments Convention. But it the states who made the decision to include Discharge Clauses, so it was legally acceptable.

10 posted on 11/16/2014 1:10:28 PM PST by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Publius

Your post is informative & appreciated. Learned a lot.

I remember in 1978 how the E.R.A. had sailed through 35 state legislatures starting in 1972 when it suddenly ground to a halt & the clock ran out a year later. Liberals blamed Phyllis Schlafly, Total Woman, and a growing majority of American women who decided that a feminism movement dominated by ranting lesbian radicals was simply not for them.

As for bootleggers & state legislatures, Prohibition in some states made for very strange bedfellows indeed. Dry counties in Tennessee & Alabama to this day. Some have distilleries in them.

11 posted on 11/16/2014 1:12:30 PM PST by elcid1970 ("I am a radicalized infidel.")
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To: Hostage; Publius; elcid1970
To Hostage: Your post deserves to be read by Freeperdom as a stand alone vanity. Much to consider.

The 17th is nuts.

The fundamental error of the 17th is that it denies the consent of the governed. The constitution acts on both the people and the states and both were represented prior to the 17th, in the law making body, congress. It makes as much sense to remove the states from congress as it does to remove the people, . . . no sense at all.

Also, consider the last clause of Article V. It was designed to enshrine the Connecticut Compromise forever in a system which could not envision the removal of the states from congress.

Aside from this academic discussion, the people know they are being screwed. Our congressional overlords risk the demise of ancient republics if they deny us our God given and constitutional right to amend our government.

To publius and elcid, thanks for the history lesson.

12 posted on 11/16/2014 1:24:04 PM PST by Jacquerie (Article V. If not now, when?)
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To: Jacquerie

“OOPS” what? What are you “oopsing” at? Just curious...

13 posted on 11/16/2014 1:26:11 PM PST by TEXOKIE (We must surrender only to our Holy God and never to the evil that has befallen us.)
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To: elcid1970
When the clock ran out on the ERA, Congress extended the clock by three years. But Congress did it by majority vote, and President Carter signed it into law with misgiving about the constitutionality of it.

What Congress should have done was re-pass and re-submit the amendment to the states with another seven year clock. But support had dwindled enough that congressional nose counting showed that there was no longer a chance for the necessary two-thirds margin in either House for passage. So they settled for a standard act of Congress and hoped that would work.

There was another fly in the ointment. A number of states had rescinded their ratifications, an act known as rescission. It had always been assumed that rescission by a state legislature was legal until the three-fourths threshold was reached for ratification. This was a legal bone of contention.

A federal court in Idaho ruled that Congress had erred in extending the window to ten years by using a majority vote. The legal "form" was incorrect. But the court also ruled that rescission was unconstitutional, which came as a surprise. I should note that the ABA Document to which I linked brought this gray area up back in 1973.

The case finally made its way to the Supreme Court after the ten year window had expired, so the Court refused to grant cert because the case was now moot. The 9th Circuit decision still stands: (1) The ERA is dead, and (2) Rescission is unconstitutional. As the ABA Document points out, Congress could make rescission legal again if it chose.

This is why I got annoyed at a FReeper who posted a thread raising hell because the Illinois Legislature was about to ratify the ERA. Who cares? If the legislature ratifies, a Memorandum of Ratification will be sent to the Archivist of the United States, who will send it back to Illinois with a letter stating that the legislature was 35 years too late.

14 posted on 11/16/2014 1:26:39 PM PST by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: TEXOKIE; Repeal The 17th

My oops was having to be reminded to ping the list.

15 posted on 11/16/2014 1:32:24 PM PST by Jacquerie (Article V. If not now, when?)
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To: Publius

We are talking about two different aspects of that event. It was urged because some US Senate seats (Vermont I think and others) were left empty. These results provided the impetus for an amendment and Congress apparently had no appetite to draft such an amendment (Of course! They never want anything in their world to change.)

Congress did take it out of the hands of states for various reasons some of which you have described but primarily I think because they wanted to short circuit precedent of an Article V event.

Still, it was an amendment that was wholly unnecessary as it was only a few states that had the problem of not seating US Senators. And those states it seems could easily have passed laws or their citizenry could have voted to amend their state constitutions to have interim US Senators appointed by their Governor.

It may have been better for the nation to have had at least one Article V process completed for the history books. I can think of no meaty, no essential reason for staggering the election of US Senators. Any explanation for such I would guess is self-serving, contrived to preserve the status quo or an exercise in sophistry. Let them all swear in at the same time.

16 posted on 11/16/2014 2:04:34 PM PST by Hostage (ARTICLE V)
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To: Publius

BTW your history background is awesome. Thanks for filling in the gaps of the motives and intents of the people of that era.

Indeed human nature does not change.

17 posted on 11/16/2014 2:20:57 PM PST by Hostage (ARTICLE V)
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To: Hostage
It was about far more than the problem of empty Senate seats. It was about corruption.

In 1829, Andrew Jackson asked in his State of the Union letter that Congress pass two constitutional amendments: one for the direct election of senators; the other for the direct election of the President, thus abolishing the Electoral College. Jackson had run on the slogan "Jackson and Reform", with his target being the use of wealth gained from industrialization for the corruption of the political process.

At the time of the Founding, wealth came from the land, which is why only property owners could vote. Two Framers had a clear vision of what America would become if industrialization broke out of the Northeast: Hamilton and Jefferson. Hamilton saw a glorious industrial and commercial nation, and he embraced the future. Jefferson had a Celtic sense of the love of the land and wanted a nation of farmers. He feared a nation of industrialists, cities and an un-propertied proletariat grubbing for the levers of power. Ironically, the one issue where the two men agreed was the concept of stakeholder franchise, i.e. only property owners should be allowed to vote.

With industrialization, wealth no longer came from the land, but from manufactures. This was the kind of wealth that only a few of the Framers could have envisioned. Rather rapidly, wealthy industrialists bought local and country governments, and moved on to buying state governments.

In factory towns, the owners would line up the employees in rank and file, and march them to the polling place. The County Clerk, usually an officer of the company, would take down their votes because the Progressives had not yet imposed the secret ballot on the nation. If a man voted the wrong way, he would lose his job, his company housing, his company scrip -- and in jurisdictions where it was impossible to tell where the sheriff ended and the company goon squad began, he could lose his life.

Jackson had favored strict regulation of corporations, and there was quite a bit of regulation at the state level. Some states only granted corporations a ten year life before requiring reorganization. But the influence of money was permeating every level of government. Because state legislatures elected senators, this corruption leached into the federal government via the Senate. As a result, over time the senators from Pennsylvania became known as the "senators from King Coal". Senators from Montana were known as the "senators from Anaconda Copper". The senators from California were known as the "senators from the Southern Pacific Railroad". This became more pronounced after the Civil War because Lincoln was working from Hamilton's template. If you go to my essay on federalism, you'll see what the Progressives were pushing for: the secret ballot, open primaries, giving the vote to women, and the direct election of senators.

What is interesting is that all the 17th Amendment really accomplished was to move the locus of corruption from the state legislatures to Washington. In effect, the 17th Amendment created K St.

18 posted on 11/16/2014 2:35:24 PM PST by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Publius
Fantastic knowledge and insight, thank you.

If you go to my essay on federalism, you'll see what the Progressives were pushing for: the secret ballot, open primaries, giving the vote to women, and the direct election of senators.

Weren't 'Progressives' in that era different from what we call progressives today?

What is interesting is that all the 17th Amendment really accomplished was to move the locus of corruption from the state legislatures to Washington. In effect, the 17th Amendment created K St.

Precisely and it makes perfect sense.

Don't you think that state populations today would benefit from having their state legislatures linked to their US Senators?

19 posted on 11/16/2014 2:53:58 PM PST by Hostage (ARTICLE V)
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To: Hostage
The Progressives of the 19th Century are the Progressives of today. Back then they didn't have power. Today they do. That's the difference.

Should the 17th Amendment be repealed? Certainly. The state legislatures should be able to appoint senators, and if the houses of the state legislature can't agree, then the governor should appoint. They should be eligible for recall by the state legislature if they ignore their instructions from the legislature.

Will the repeal of the 17th be ratified? Not likely. This is just politics, not principle.

For that reason, an Amendments Convention should address the issue of state nullification, and replacing the Supreme Court with the chief justices of the 50 state supreme courts to meet via the Internet to decide cases.

BTW, read my essay.

20 posted on 11/16/2014 3:01:12 PM PST by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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