Article V Convention
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The Article V Convention
Conventions, as a means of amending written constitutions, are a distinctly American institution. The word constitution is used to signify something superior to legislative acts: a text of principles beyond the control of a legislature, executive, court, private group, or private citizen. If the individuals who populate the federal government fail to protect the common good, the states hold a convention to propose needed change(s) [1]. This is a profound constitutional principle, if not the most profound.
Since our United States Constitution is unique in all political history, so too is its convention clause, from Article V, with clearly defined powers (a proper noun): the Article V Convention (or Article 5 Convention).
Legal Issue Regarding the Article V Convention
Since a constitution is a social agreement--a compact/covenant/contract--where the society agrees with each citizen, each citizen with the society; that all shall be governed by law for common good; that government is based upon that agreement between a people and a state, the pertinent legal issue is the validity of applications on record. The debate over validity of applications is between Conventionists and Anti-Conventionists. It follows as:
Anti-Conventionist: The Founders stated the Article V Convention is permissible, not mandatory, so we say it's a bad idea.
Conventionist: The Founders did not say it was permissible, but peremptory.
Anti-Conventionist: Permissible is not the opposite of peremptory, but the opposite of mandatory. As of now, it's not mandated.
Conventionist: The applications are on record, therefore the convention is currently mandated.
Anti-Conventionist: It's an inferential leap to believe any application, on any subject, at any time, can be combined with all others to mandate a convention.
The position of Anti-Conventionists is that applications in Senate/House records have somehow expired or are void because not cast within the same session of Congress, or because they’re not same-subject. To get to the crux of this, the most recent amendment to the Constitution provides proper context in which to view it.
The 27th Amendment [2]was ratified in 1992 though was originally proposed by James Madison, and was meant to be part of the Bill of Rights. It sat in the office of the Secretary of Congress all the way up to the point a college student from Texas discovered it http://en.wikipedia.org/wiki/Gregory_Watson, brought it to light, and in a natural progression of events it was ratified. It was originally proposed in 1789, which means it was active for over two hundred years.
Anti-Conventionists question whether the same principle applies to state applications for the Article V Convention. The reason the same principle applies is the reason the 27th Amendment was ratified: because no law existed which prohibited it. Anti-Conventionists presume burden is to show why it doesn't matter when or for what reason an application was cast, when burden is to show why any single application is void or expired. Anti-Conventionists cannot because only one law exists regarding them: Article V of the Constitution. Once the requisite number apply the convention call is peremptory--ministerial in nature. Why? The Founders knew the worst in politicians would resist the Article V Convention at all costs. Why? It will do what it's designed to: purge corruption from the legislative branch and in turn make the other two branches stand to attention. A positive of the human condition is that when citizens convene, consensus happens, and a three quarter requirement for ratification sanctifies popular will (How's that for a constitutional principle? The electorate wields sovereign power).
Anti-Conventionists question whether applications should be effective 10,000 years from now, asking if it can be argued the Founders intended such a result? Is there historical evidence of such intent? Yes: Article V is the historical evidence of such intent. The Founders probably did not expect the Constitution to last for 10,000 years, does that mean if it does it should expire at some point? Further evidence of intent: Federalist 85 and the numerous debates in ratifying conventions where it was brought up repeatedly: not to fear the new Constitution and national legislature for the convention clause. Should the Congress become corrupt or compromised, it shall call a convention once applications go on record.
Our situation today is fortunate in that we can resolve more than one national issue by convoking a convention. 1) It will reset the number of Article V Convention applications on record. 2) A 28th Amendment proposal on electoral reform, capable of ratification, will likely result. 3) It will check special interests currently influencing governance in the USA.
In the final analysis the objective nature of the convention clause is that if a single subjective limitation is placed on any of the applications, where does that action end? Somewhere between you and I? Us and Them? This generation or the next? Therefore it must be emphasized: not a single limitation can be placed on any of the applications for the Article V Convention because one begets many. Satisfaction of the clause is based on a simple numerical count and is unquestionable beyond that--including by any one U.S. Congress, Executive, Court, private group, or private citizen.
Supreme Court Rulings
While burden is on Anti-Conventionists to substantiate their position against convoking the Article V Convention, the following citations refute them:
Marbury v. Madison, 5 U.S. 137 (1803): “It cannot be presumed that any clause in the constitution is intended to be without effect.”
The convention clause of Article V is not without effect.
Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “The government of the United States can claim no powers which are not granted to it by the Constitution.”
No branch of government has the power to question the validity of a state application for the Article V Convention.
Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842): “[The] Court may not construe the Constitution so as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them.”
To question the validity of a state's application attempts to construe and defeat the obvious ends of the convention clause.
Dodge v. Woolsey, 59 U.S. 331 (1855): “The departments of the government are legislative, executive and judicial. They are coordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, right-fully done by either, is binding upon the others. The constitution is supreme over all of them, because the people who ratified it have made it so; consequently, any thing which may be done unauthorized by it is unlawful.”
The three branches of government are unauthorized to question the validity of a state application because the power to do so does not exist. In fact, according to Federalist 85, the saving grace of the Constitution is the prohibition of such a power. The validity/effect of each state application is based solely on its having been cast.
Jarrolt v. Moberly, 103 U.S. 580 (1880): “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.”
To attempt to question the validity of a state application, either through its contemporaneousness or subject matter, is to attempt to defeat its purpose and allow the mischief at which it’s aimed to suppress.
U.S. v Sprague, 282 U.S. 716 (1931): “Where intention of words and phrases used in Constitution is clear, there is no room for construction [re-interpretation] and no excuse for interpolation.”
Any attempt at construction or interpolation as to the validity of state applications runs counter to the intention of the words used in Article V.
Ullmann v. U.S., 350 U.S. 422 (1956): “Nothing new can be put into the constitution except through the amendatory process, and nothing old can be taken out without the same process.”
There's nothing in the Constitution which places any stricture in any way whatsoever on the validity of state applications for a convention. If Anti-Conventionists wish to limit the validity/effect of a state's application, they must propose such a law and then work to have that law ratified.
Ullmann v. U.S., 350 U.S. 422 (1956): “As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion.”
The constitutional guarantee to a national convention is currently suffering subordination. Based on the rule of law the Article V Convention is mandated, which means every Congress is in violation of the U.S. Constitution until the Article V Convention is convoked.
Contemporary History/Political Action & Pending Applications
From the time the U.S. Constitution was ratified the Article V Convention had been referred to in a general sense as a “constitutional convention,” until the 1982 Cooley Law Review correctly identified it in Return to Philadelphia [3] by Justice Thomas E. Brennan [4], former Chief Justice of the Michigan Supreme Court. The New York Times, The Washington Post, The Los Angeles Times, former national newspapers, periodicals, and law reviews, during the spring of 1986, and into the early 1990s continued to refer to it as a “constitutional convention” even though the distinction between the two types of convention had been made. A Constitutional Convention and the Article V Convention are two different things, to confuse one with the other is to confuse an apple and an orange.
The Hamline Law Review, Fall 1990, in A Lawful and Peaceful Revolution: Article V and Congress' Present Duty to Call a Convention for Proposing Amendments by Justice Bruce M. Van Sickle and assistant Lynne Boughey [5], for the first time in American history, published a partial list of state applications, taken from Senate/House congressional records, formally requesting (as a Memorial) the presiding congress issue the call for the Article V Convention.
In December 2000, Eagle Scout and constitutional scholar Bill Walker from Auburn, Washington filed the first of two suits in attempts to have the judicial branch address the issue of the requisite number of states having cast applications for the Article V Convention. In 2004 Walker refined his legal focus and filed Walker v. Members of Congress (06-244 U.S. Supreme Court). A short documentary was made about this suit, winter 2005 [6]. The suit was denied certiorari October 30, 2006.
In February 2007 the Harvard Journal of Law and Public Policy commissioned Justice Brennan to revisit his work from the winter of 1982, which resulted in a new piece, The Last Prerogative [7]. In researching the update he discovered efforts to get the matter before the high court, and out of those contacts the national group Friends of the Article V Convention was formed [8]. This group is currently gathering into one database all state applications found in congressional records [9].
Conclusion
Securing the voting process from private/special interests is action for the common good, as election results are a public matter. The voting process is the matter which expresses the sovereign will of the electorate--the matter upon which all other political matters rest. If those who populate the federal government fail to secure the voting process from private/special interests, the constitutional principle of the calling of a convention obtains.
Americans are taught the Declaration of Independence and U.S. Constitution as our most important founding documents, what we are not taught is how the former was written into the latter: the Article V Convention. The beauty and genius of the American constitution is how it provides for a peaceable revolution/reformation, a return to first principles--freedom--sans violence.
Links
- 2008-12-16 The ‘Con-Con’ Con: We Don’t Need To Rewrite The Bill Of Rights - a contrary opinion from Americans United for Separation of Church and State: "Here’s the problem: Once a con-con is convened, all issues are on the table. There would be no way to limit the discussion to equal rights for women, balanced budgets or any other single-issue. The event would quickly become a free-for-all. If the process were taken over by the extreme right wing, there’s no telling what might end up pasted onto the Constitution." This seems unusually fear-based for a progressive organization (which Americans United generally is), but perhaps the practical matter underlying their concern might be stated as: How do we know that the process will be based in something resembling rationality, rather than the usual politicking? --Woozle 15:08, 18 December 2008 (PST)
- If the usual politicking is not something resembling rationality, why deny the alternative the U.S. Constitution provides? To fear the convention clause is to fear open discussion. A "free-for-all" of political discussion does not seem dangerous alongside a legislative branch asleep at the switch. --John De Herrera 16:53, 18 December 2008 (PST)
- Agreed -- though perhaps it would help allay people's fears to give some idea of what the process would be like, if it is already known, or to suggest a process if not (and make that process a precondition for the convention). It also might help to remind people that this wouldn't be legislation "passed in the dead of night", as it must be ratified by the states in order to be valid. --Woozle 03:51, 19 December 2008 (PST)
- Yes, exactly. There are plans in the works to show instead of tell of the process, will be specific when more details emerge. --John De Herrera 15:10, 21 December 2008 (PST)
- Agreed -- though perhaps it would help allay people's fears to give some idea of what the process would be like, if it is already known, or to suggest a process if not (and make that process a precondition for the convention). It also might help to remind people that this wouldn't be legislation "passed in the dead of night", as it must be ratified by the states in order to be valid. --Woozle 03:51, 19 December 2008 (PST)
- Most importantly, the applications are on record, and who are you or I or government officials to question aspects of the Constitution? It must be obeyed or we are living a farce as Americans. --John De Herrera 20:45, 18 December 2008 (PST)
- Agreed. --Woozle 03:51, 19 December 2008 (PST)
- If the usual politicking is not something resembling rationality, why deny the alternative the U.S. Constitution provides? To fear the convention clause is to fear open discussion. A "free-for-all" of political discussion does not seem dangerous alongside a legislative branch asleep at the switch. --John De Herrera 16:53, 18 December 2008 (PST)
