It Seems We're There Already

[Thomas Kern]

Michael,

There is an organization called Friend Of Article V Convention (FOAVC.org) which claims that already all 50 states have submitted calls for an Article V convention which have simply been ignored by Congress. If this is true, and their documentation suggests that it is, what do we do now? How do we mandate Congress to do do their job?

Thomas

[Bill Walker]

As these are very old posts, I will simply make a few statements to correct some errors of them. First of all FOAVC does not "claim" anything regarding the applications. Instead we show photographic copies of the 750 applications submitted by the states. The photos are of official government records. Second, the government has officially and formally admitted the applications are accurate and that Congress is obligated to call a convention. This was said in a formal court setting by the attorney of record for Congress, the Solicitor General of the United States in his official capacity. He also stated on behalf of the Congress what the terms of an Article V Convention call are. They are: a call is peremptory; it is based on a simple numeric count of applying states with no other terms or conditions; the states have applied in sufficient number to cause a convention call and it is a criminal violation of oath of office for the members of Congress not to call a convention.

I strongly suggest all study all materials, especially that found on the FAQ page regarding a convention.

As to FOAVC supporting the Bill of Federalism. FOAVC is a non-partisan organization formed specifically and exactly for one purpose--to bring about an Article V Convention call. Therefore, our organization does not favor any amendment proposal including a proposed Bill of Federalism. Our purpose is to concentrate on the process rather than any specific amendment proposal and it is for this reason FOAVC does not support any amendment proposals of any description.

[Vince]

You are 100% right. My apologies to you and the group if I sent anybody else on a wild goose chase. I have deleted my post so as to not mislead anyone. So much for my budding career as a constitutional scholar! I took at face value the reporting of another article (http://www.familysecuritymatters.org/publications/id.2339/pub_detail.asp) and didn't bother to fact check. I just assumed he meant the s 214 bill as it is the only one to deal with Article V conventions in the 102nd congress. At this point I'm not quite sure where congress outlined the standards for contemporaneousness he is referring to in the article. I'll assume for now he is referring to the practice established in prior amendments mentioning the seven-year rule, in the precedent of Dillon Vs Gloss and affirmed in the congressional action surrounding the 27th amendment.

In my further research this morning I stumbled on some other interesting discussions of this issue. These two documents, In addition to confirming your observations about s 214 also outline what issues will be raised as regards regulating a convention. One stemmed from the passage you posted. It’s the CRC report referred to in the House Congressional Record. (http://www.cusdi.org/crs1995durbin.htm) It is a thorough accounting of the Article V issues written circa 1995. Another is the Walker Vs U.S. 2000 brief prepared by the plantiff. (http://www.article5.org/Webbrief.pdf) The CRC report takes a more or less unbiased approach to documenting the implications of Article V. The Walker brief, however, highlights a point of view I hadn't considered and that we might want to discuss. In his case, which by the way was dismissed by Supremes on the basis of standing (The Court ruled Walker is not a state and thus has no claim), Walker asserts that congress should have no say what so ever in regulating a convention, meaning that all conventions must be unlimited conventions. (Interestingly they viewed s 214 as a congressional power grab) This interpretation could work for us because I suspect that Congress is going to interpret what we are doing as a hostile act meant to rein them in. It is possible that if we engage in a game of chicken with Congress they could try to take control of the convention. If they didn't try to preempt and pass their own version of the Bill of Federalism they could try to pass rules to restrict the convention in a way that would be difficult to attain our aims. Our adopting this viewpoint is not going to make it any easier to placate the runaway convention fear mongers. I suppose we could argue that if the convention exceeded its purview by circumventing the states' grant of authority then congress could refuse to pass the petition on to the states for ratification. I'll bet that would result in a fight though. If a proper plaintiff was presented before the court and a variant of the Walker view was upheld then the only real safety valve is the 3/4 state vote for ratification. But given that the Bill of Federalism is essentially a states’ rights bill I am guessing that its provisions would pass without too much trouble and anything else that got thought the convention would fall by the wayside. Stressing the atomicity of the amendments is going to be key to placating people.

So that leaves me torn on this subject. It’s anyone's guess how the Supreme Court would rule here but given the precedents set in Dillon and other cases I would guess they would rule that Congress has at least some regulatory powers in the matter. Then the question is how we prevent the congress from legislating our right to a convention away or simply ignoring our petitions. Clearly gamesmanship is going to be involved here.
Obviously, tying our efforts to the Tea Party movement is going to be key to garnering popular support. Further we should consider approaching all the special interest groups addressed in the Bill of Federalism i.e. (The Fair Tax folks, Balanced Budget Amendment folks, etc.) so that we can bring their resources to bear on the problem. Perhaps the Bill of Federalism non profit should be positioned as a consortium that ties these groups together. This is essentially what the Friends of the Article V Convention people are trying to do but instead of leading with a discrete set of tangible issues like the Bill of Federalism they are focused obsessively on the call for convention. Perhaps we could enlist these groups in a web ring so that we can make each group's members aware of the other group's causes. Someone should take the lead in approaching each group and educating their members about our cause. The Fair Tax people for example have tons of effective tools to get their members excited. We should leverage those groups’ efforts otherwise we make ourselves and Professor Barnett a single point of failure in this endeavor.

[Thomas Kern]

Thanks Vince,

If I'm correct, the bill was referred to committee where it died. I cannot find any law that came of the bill. I searched the Govt printing office and all I could find is a refernce to this bill in the House http://www.gpo.gov/fdsys/pkg/CREC-2000-12-15/pdf/CREC-2000-12-15-pt2-PgH12524.pdf



Now, Mr. Speaker, the next time
bomb which we have not bothered to
listen to is the method of amending our
Constitution by holding a Constitutional
Convention. We have never
amended our Constitution that way,
and so we have tremendous questions
as to how such a Constitutional Convention
would work. The last time
Congress dealt with this, I believe, was
in the 102nd Congress, when there was
a Constitutional Convention Implementation
Act introduced but basically
ignored by the House and the Senate.
Here are a few of the issues.
Let me cite article 5 of our Constitution,
first of all, which says that with
the application of the legislatures of
two-thirds of the States, there shall be
a convention for proposing amendments
to the Constitution, which
would then have to be ratified by the
legislatures in three-quarters of the
States. In fact, quite a number of
States, at times in the past, sometimes
50 or 100 years in the past, have passed
the necessary resolution to call for a
Constitutional Convention. Usually,
they have called for a Constitutional
Convention to deal with this or that
problem. Some States have called for
constitutional conventions to deal with
a balanced budget amendment or with
term limits. But if a Constitutional
Convention were called, or purportedly
called, perhaps called in the opinion of
some and not called in the opinion of
others, the Congressional Research
Service outlines quite a number of
questions that have not been settled.
For example, on question yet to be
settled is whether or not the petitions
to call that convention must all be the
same document or whether some can
call for a convention to deal with term
limits and others a convention to deal
with balancing the budget, and a bunch
of others calling for a convention to
completely revise the Constitution.
What are the scope and limitations of
any such Constitutional Convention?
Once assembled, for example assembled
for the purpose of passing term limitations,
is the convention free to propose
to the several States the complete revision
of our constitution? What is the
validity of any rescission of a petition
by a State legislature? If a legislature
called for a Constitutional Convention
to deal with the adverse consequences
of prohibition and passed that resolution
in the first half of the last century,
is that State, one, counted toward
the calling of a Constitutional
Convention included in the tally of
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H12528 CONGRESSIONAL RECORD—HOUSE December 15, 2000
modern States that have called for a
Constitutional Convention to deal with
such modern concepts as term limits?
b 2030
Do State petitions have to be contemporaneous?
Another unsettled
issue? There are many others.
And yet, our entire Constitution
could be revised from the beginning
through the most recent amendment
by a constitutional convention which
may or may not be legitimate because
it may or may not conform on one of
these issues.
It is time for Congress to either abolish
the entire concept of a constitutional
convention or at least clarify
how it would be called and what would
be the scope of its powers.
I might add that perhaps we should
move to a system where Congress can
propose or State legislatures can propose
amendments to our Constitution
either two-thirds of both Houses of
Congress or two-thirds of the State legislatures
who could then see that
amendment approved at a referendum
by two-thirds of the people of the country.
It may be time to look to the referendum
as a way to ratify amendments
to our Constitution.
Those are at least issues that we
should talk about as much as we talk
about the issues that pit Republicans
against Democrats. We should deal at
length with the structure of our democracy

[Thomas Kern]

Jon,

So identical language and a 7 year shelf-life is the key. Presumably then The Bill of Federalism provides the "identical language framework" and this will need to be petitioned by 2/3 of the states within a 7-year timeframe. Correct?

[Thomas Kern]

Vince wrote: The Founding Document is silent about a Convention for Proposing Amendments, except for establishing its existence and the criterion of its call by Congress. In 1965, a commission of the American Bar Association laid out what could be divined about the Framers’ intent. Then in 1992, after the commotion over the unexpected ratification of the 27th Amendment, originally proposed in 1789, Congress passed a bill reforming its involvement in the amendatory process, to include regulating the petitions for a Convention for Proposing Amendments and regulating the Convention itself.

Can you tell me the bill Congress wrote in 1999 to regulate petitions, etc.

Wonderful summary by the way...thank you,

[Jon Roland]

What the Friends of the Article V Convention are counting are many different petitions with different proposed amendments. It is more meaningful to count the number that are demanding each specific amendment. For example, a leading proposed amendment is for a balanced budget, but most of the proposals differ from one another. The Equal Rights Amendment got adopted by Congress because the language proposed was nearly identical from every state. identical language is the key.