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, 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.