<h3> Some Thoughts on the Mechanics of the Article V Movement</h3>

Mark Levin and his new book, Liberty Amendments, has energized the idea of reforming Washington through a convention called for by the states and conducted by the states which offers the hope that the stranglehold on American politics currently concentrated in Washington can be reformed outside of Washington. The predicate for all of this is the assumption that Washington is both incapable and unwilling to reform itself and indeed will be hostile to any efforts from outside to reform it. Movement conservatives believe that our current mode of governance, even where certified constitutional by the Supreme Court, is in fact repugnant to the document. Here are a few thoughts about the mechanics of the process which might be involved in invoking article That V. Please be advised that these thoughts do not reflect any research into the current state of case law except as noted in passing.

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

1. Two thirds of the states apply to Congress to conduct a convention to propose amendments.

4. Congress "may" (or may not?) propose to submit the proposed amendments to a ratification process consisting of the legislatures of the states or of conventions of the states.

5. If three quarters of the states' legislatures or three quarters of the states' conventions ratify such proposed amendments, they become incorporated into the Constitution.

The Constitution is silent about the consequences of Congress failing its affirmative duty ("shall") to call a convention to propose amendments.

As distinguished from the affirmative obligation to call a convention, the Constitution invests in Congress the option to choose either state legislatures or state conventions to ratify or to fail to ratify proposed amendments.

The Constitution is silent about whether the grant of discretion ("may") is a limited grant which limits the discretion to two options, i.e., ratification by legislature or ratification by convention (i.e. whether Congress must choose one or the other), or whether the federal Congress has the unlimited grant of discretion to fail to choose at all. Further, the Constitution is silent as to the remedy if Congress fails to choose at all and the world is left in the dark whether the states should proceed with their legislatures or by conventions.

This becomes relevant because one can easily anticipate a campaign of obstruction if not outright sabotage of the Article V movement which Mark Levin is now championing. For example, since the Democrats control the Senate it is quite likely that the Senate will fail to join with the House to "call" a convention for proposing amendments. Harry Reid will simply sit on the fact that 34 or more states have applied for a constitutional convention. What happens then?

If Congress flatly refuses to obey it constitutional obligation to "call" such a convention, may the states proceed anyway?

Nor should be considered unlikely that the house will fail to join in such a call because we can consider that the House Republicans would not be eager to see their powers reduced by the kinds of amendments Levin has proposed. At the very least, bareknuckle conservatives anticipate passive aggressive resistance from Republicans in the house and they further anticipate Rino sniping from the sidelines in a matter much as we see today concerning the effort to "defund" Obamacare.

It is not clear whether Congress can affix conditions to the operation of the convention such as unrealistic time limits, arbitrary subject matter limitations, or requirements with respect to the nature of the delegation from each state. The Constitution is silent on these issues. If Congress does affix conditions to the subject matter of the convention for proposing amendments, does the convention have to observe them? If the convention chooses not to observe them and produces proposals which are subsequently ratified by 38 states, either in convention or by their legislatures, which do not comply with the restrictions, are the new amendments part of the Constitution?

The Supreme Court has stated in dicta that these are not justiciable questions but political questions so the prospect arises whether any of these difficulties can be resolved by resort to litigation in the courts. From the point of view of Article V movement conservatives who are already proposing amendments to limit the power or at least the tenure of justices, it is probably better if the court does not have supervisory jurisdiction over the process.

Objections have already been raised to this process which cite the danger of a "runaway" convention in which the Constitution is in effect rewritten and a profoundly undesirable form of government emerges, one which is repugnant to conservatives. In rebuttal it is noted that The constitutional convention so envisioned by Article V does not itself change the Constitution, it merely proposes amendments which must be ratified by three quarters of the states, or 38 states.

It is not at all clear that any of the dilemmas raised here will even occur or if they do that they will be resolved by litigation. No doubt new difficulties will be encountered which are not anticipated here. These are offered as food for thought to stimulate discussion.

Publius:

Looking at your first-rate analysis of the Federalist Papers, I noted your reference to your comments at the foot of #43 and I believe that is relevant and I presume to quote your work at length titled, A Convention for Proposing Amendments below.

You really have done first-rate work.

I wish I had been exposed to it before I wrote my vanity but I'm also pleased that we seem to be on the same page when it comes to anticipating many of the problems implementing an Article V convention. I had to intuit my effort without the benefit of your work.

I was unable to open ALEC.

Here are your comments at Federalist Paper #43 for the benefit of any late coming readers to this thread:

At 85, Madison explains that there are two ways for amendments to the Constitution to be proposed to the states for ratification. The first is for two-thirds of each House of Congress to propose them. The second is for the legislatures of two-thirds of the states to request Congress to call a Convention for Proposing Amendments. Often referred to as a “Constitutional Convention”, it is viewed as the “nuclear option”.

Over the centuries, Congress has considered requests for a Convention to be fixed to a “single subject” standard, and this has foundation in contract law. According to this standard, the Convention is the agent of the states, and an agent may not go outside the purview of his agency agreement. The purview of a Convention is determined by the petitioning language generated by the states, and any attempt to address extraneous issues is forbidden. This is the traditional position.

An alternative position asserts that the Convention is a sovereign body during its life, and it may address any issue it wishes, whether authorized by the states or not. This is a decidedly minority position.

The safety valve is the requirement that the legislatures, or ratifying conventions, of three-fourths of the states ratify amendment proposals produced by a Convention in order for them to be placed in the Constitution. This is what would rein in a “runaway” Convention.

In 1965, the American Bar Association appointed a commission to determine if the Supreme Court’s “One Man/One Vote“ ruling would affect a Convention for Proposing Amendments. One commissioner thought that the Convention was such a primal act of the Republic that it would not, but he was overruled by the other 19 commissioners. The commission also came up with a draft bill to codify the “single subject” rule, to set a standard for the “freshness” of state petitions, to define the procedure for election of state delegates to the Convention, and to define the Convention’s initial rules of procedure.

In 1968 Sen. Everett Dirksen of Illinois introduced legislation matching the ABA’s draft bill, but it did not pass. Upon his death, Sen. Sam Ervin of North Carolina picked up the torch, and upon his retirement Sen. Orrin Hatch of Utah sponsored the bill. Its last introduction in 1991 failed to pass the Senate Judiciary Committee.

Only once did petitions for a Convention for Proposing Amendments reach the two-thirds threshold, and Congress found wiggle room to weasel out of calling a Convention.

In the early 20th Century, one of highest priorities of the Progressive Movement was to end the practice of state legislatures electing senators and pass that to the people via direct election. This had been suggested at the Constitutional Convention of 1787 by James Wilson, and Andrew Jackson had pushed for it in 1829. With many state legislatures functioning as wholly-owned subsidiaries of railroads, mines and other corporate interests, senators were often better known for the company they represented than the state.

The House had often passed an amendment to change this, but the Senate always balked. Then the state legislatures began demanding a Convention to introduce a constitutional amendment to effect this change. When the two-thirds threshold was reached, the Senate reacted by passing the 17th Amendment to the states for ratification.

The Senate had feared that a Convention would come up with an amendment that required the election of the entire Senate all at once under the new paradigm. When the vote by the state legislatures pushed the Senate into action, it came up with wording that permitted the change to go into effect starting with the election of 1914, requiring no new election for the entire Senate.

How did Congress avoid calling a Convention, even when the two-thirds threshold had been reached? Some petitions for a Convention stated that their conditions would be met if Congress passed such an amendment on its own. Once Congress acted, the petition was considered discharged, and it no longer counted for the calling of a Convention. Had those state petitions been worded otherwise, Congress would have been caught in a ticklish situation.

In two Supreme Court decisions, Dillon v. Gloss (1921) and Coleman v. Miller (1939), the Court ruled that if the states met the two-thirds threshold, Congress had no choice but to set a time and place for the Convention; it was a purely ministerial function for Congress. However, as those cases did not pertain directly to this issue, it has been alleged that the statements of the Court were dicta and not law. In other words, Congress could refuse to call a Convention, no court could order it to do so, and only the people, through the political process, could force Congress to do its duty by altering the makeup of Congress.

Even today, there is a lot of uncharted territory.

As I make my way through the documents to which you have so kindly provided the citations, I am struck by the authoritative temper taken by the authors in which they confidently state a rule for which there is no explicit source. For example, the handbook repeatedly says that the convention may not be a "plenipotentiary" convention and, even conceding that they cite no less an authority than Madison, why should that be so?

As a matter of curiosity, or rather as a matter of fundamental philosophy, I wonder about the strange clause in Article V which prohibits the convention from changing the rule that each state has "equal suffrage in the Senate." I can philosophically understand why the convention might not alter the constitutionally determined mechanics of ratification, but how can the Constitution set aside part of itself to be eternally immutable?

If Mark Levin gets traction on his approach, we shall see some really agile legal minds waging battle over the application of Article V and I certainly look forward to it. More important, I think FreeRepublic should be prepared to contribute.

If you don't mind, I will have some additional thoughts later for your reaction.

To alter the principle of equal suffrage in the Senate, it would first be necessary to amend Article V to allow it. Only then could the principle be altered.

It would be a two-step process.

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

Altering slavery before 1808 is one explicitly forbidden subject. Ending equal suffrage in the Senate is the other.

Implicitly forbidden is a convention to write a new Constitution. Article V's language permits Congress or a convention to propose amendments to the Constitution of 1787. Period. Because of that, Article V implicitly forbids Congress or a convention from starting afresh with a new Constitution. This is what that "plenipotentiary" business is all about in the ALEC document.

The states, however, may request a general convention, as opposed to a single-subject convention. This would permit delegates from the states to address all possible subjects for amendments, not just one subject. To address Mr. Levin's proposed amendments, it would be necessary for the states to petition Congress for a general convention.

Not identical scope.

Look at it this way. Article V implicitly forbids throwing out the Constitution of 1787 and starting over. But it allows the states to request a general convention open to all subjects for amendment proposals. Because Congress and an Amendments Convention have the same proposal powers, Congress can't start over either, but it can propose whatever amendments it desires.

To sum it up, throwing out and starting over is a no-no. But proposing 60 amendments that would change the shape of the document is allowed. It sounds like the same thing, and it may even have the same effect in the end, but it is really two different processes.

As far as determining who controls what, this is where the gray areas predominate. I have an idea. Take the points made in the ALEC document and chart them versus the points made in the ABA report.

Here is an example. ALEC says that if a state requests a convention, that request sits out there in perpetuity unless a state's legislature explicitly rescinds that petition. Their logic is that convention petitions and amendment ratifications are governed by the same rules. ABA says that convention petitions require contemporaneousness, and Congress has the right to set the standards for that timeliness. Their logic is that convention petitions and amendment ratifications are apples and oranges.

Make a list of all these discrepancies, and you'll locate all the issues that will be battled in Congress and the courts if 34 states request a general convention to discuss Levin's amendment proposals.

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