PROPOSED CONVENTION RULES (Article V)

Convention of States Project ^ | September 2015 | Convention of States

[betty boop]

[The States] used Congress on their general purpose convention of states for the purpose of Article I legislating within the framework of the Constitution.

Question: When has a "general purpose" convention of the states ever been called in American history? I see no precedent for such a thing.

Even the first convention, the Philadelphia Convention of 1789, the mother of all constitutional conventions, was not a "general purpose" convention: The States convened for the purpose of remediating obvious defects in the Articles of Confederation.

I have no knowledge whatsoever that a "general purpose" constitutional convention has ever been convened in American history. Maybe I've missed something. If so, kindly cure me of my ignorance.

You wrote:

You are sounding like the states are there to serve the federal government, and have to unite in some way to convince the feds to let them meet to discuss how to change their own method of governing.

This is not my understanding, nor my position, at all. My fervent hope is that an Article V COS will be called for the main purpose of proposing amendments that restore and strengthen the Tenth Amendment powers of the States as recognized by the federal constitution, which the federal constitution as originally purposed was charged to uphold and defend.

I do not at all regard the several states as mere administrative units of an overweening leviathan. The people, acting through their states, have a sovereign right to call their national government to account for transgressions against their natural and constitutionally-guaranteed liberties, which mainly occur whenever the national government works outside the scope of its very limited constitutional powers. And succeeds in doing so, mainly by invading and effectively nullifying the clear language of the Tenth Amendment.

The States are the bulwark of the people against federal tyranny.

I may be from Massachusetts; but I'm "state's rights," right down to the ground.

In no way am I imploring Congress for "permission" to defend my natural and constitutional rights. Rather, I DEMAND that Congress perform its completely non-optional duty to call a COS, upon evidence that a 34-state quorum on subject matter has been established sufficient to FORCE such a call.

Just some thoughts, FWTW.

Thank you so very much for sharing your thoughts, PJ!

[Jacquerie]

Not at all. The convention does not have to adjourn sine die. There is nothing to prevent it from adjourning for instance to a particular date the following year.

By this, a convention of the states could be a much needed standing institution.

[Hostage]

> “I may be from Massachusetts; but I’m “state’s rights,” right down to the ground.”

Just a suggestion ...

I am writing to my state’s grassroots and COS persons that we should avoid the phrase “state’s rights” because it is a trigger for unneeded and unwarranted adversity.

The phrase “state’s rights” is a trigger for the history of segregation as espoused vociferously by democrat Governor George Wallace of Alabama during the 1960s.

In its place I am thinking to propose using “State’s Role”, “State Sovereignty”, “State’s Realm”. “State’s Sphere”, “State’s Prerogative”, “State’s Area”, “State’s Domain”.

I am not advocating political correctness but rather political expediency. No need to get bogged down by the usage of trigger words that set a discussion off on a tangent of segregation or other unrelated issues and history.

Although the 1960s are by now quite a time ago, the trigger words still persist in the media.

[Political Junkie Too]

Question: When has a "general purpose" convention of the states ever been called in American history? I see no precedent for such a thing.

I was speaking metaphorically.

The Senate is a perpetual convention of states, authorized by Article I, for the purpose of legislating. Prior to the 17th Amendment, the states even selected their own delegates.

Article V authorizes a convention of states for the purpose of amending the Constitution. I was noting the similarity that these were both bodies at the direction of the states, not of the federal government.

I DEMAND that Congress perform its completely non-optional duty to call a COS, upon evidence that a 34-state quorum on subject matter has been established sufficient to FORCE such a call.

Then that is our point of disagreement. Asking for subject matter agreement in application, to me, is an unnecessary "high bar" that is intended by opponents to stop the Article V process. It becomes a Congressionally-imposed burden on states, which makes states subordinate to Congress. Buying into the argument that same subject applications are required just buys into the idea that Congress is supreme in this matter.

-PJ

[trisham]

Thanks, betty boop. I’m beginning to have a better understanding, although far from complete.

[betty boop]

it appears to me that every suggested amendment from Mark Levin's Liberty Amendments could be motioned for consideration by the federal jurisdiction committee. They are precisely the sort of structural changes that must be approved by the convention and submitted to the states.

Indeed. It appears that all of Mark Levin's Article V COS desiderata could be dealt with under the three proposed subject-matter standing committees — fiscal restraints, federal jurisdiction, and term limits — which are the scope of the recent Georgia Application that has been emulated in the COS Applications of Alaska, Florida, and at least one other state so far.

It is my hope that the Article V COS will confine itself to structural amendments, not aspirational ones; like, for instance, a marriage amendment. A marriage amendment would "federalize" marriage — historically a state issue — the same way the Fourteenth Amendment "federalized" citizenship — something historically left to determination by the sovereign states.

What we want to do is propose amendments to the federal constitution, NOT grant the federal government any new powers — which is arguably exactly what a marriage amendment would do.

Plus Prohibition — the 18th Amendment — was an "aspirational" amendment; and we all know how that turned out; e.g., the explosion of organized crime, violence and mayhem; endemic public corruption at all levels, etc.

But I'm getting 'way ahead of myself here. I've been trying to visualize how an Article V COS would work, if Natelson's proposed rules were to be adopted. And that's a whole lot like trying to "visualize" Niels Bohr's "atom." LOL!

Thanks so much for writing, Jacquerie!

[betty boop]

I am writing to my state’s grassroots and COS persons that we should avoid the phrase “state’s rights” because it is a trigger for unneeded and unwarranted adversity.... I am not advocating political correctness but rather political expediency. No need to get bogged down by the usage of trigger words that set a discussion off on a tangent of segregation or other unrelated issues and history.

A most excellent suggestion, Hostage! I didn't think of that. But I'm sure you're right. Once the COS hits the MSM radar screen, I expect all Hell will break loose. There'll be such quantities of MUCK stirred up that it will be difficult to see straight. We had better not be providing the enemy with ammo he'll use to try to kill us.

So, I'm swearing off "states' rights" language from now on. "Tenth Amendment Powers" would be my suggestion for a new moniker. That sounds harmless enuf. What talking head would want to rail against something that "abstract?"

[Hostage]

“Tenth Amendment Powers” is excellent!

“States Restoration”
“Rebalancing Powers”
“Leveling the Legislative Playing Fields”

Many ‘positive’ slogans and phrases can be used to steer the movement into activities and discussions that are distraction-resistant.

[betty boop]

The Senate is a perpetual convention of states, authorized by Article I, for the purpose of legislating. Prior to the 17th Amendment....

"Prior" is the operative word here. Arguably, though the first part of your statement is indubitably correct, the Seventeenth Amendment absolutely detached the Senate from the state governments which they were intended to represent. They no longer represent state governments; arguably, they no longer even represent the people of their states. They are just a big political faction or club of "solons" in Washington, mainly representing party interests. In recent times, the Senate has ensured legislation that a majority of citizens demand has not got a snowball's chance in Hell of being enacted.

That's history now, and we have to live with it. Unless we repeal the Seventeenth.... Which subject the Georgia Application contemplates.

With all respect, PJ, I hope we can just agree to (cordially!) disagree on the entire matter of state Applications. You see the Application as "a Congressionally-imposed burden on states, which makes states subordinate to Congress."

I just don't see it that way. In the first place, this is not a Congressionally-imposed burden. It is authorized by the plain language of Article V itself:

The Congress, whenever two thirds of both Houses shall deem it necessary, or on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments.... [emphasis added]

This is hardly a constitutional demand that the States offer obeisance to Congress. It is a mere stipulation of the Article V procedural rules for the calling of a COS.

After the COS is CALLED, Congress has neither a legislative nor executive role to play. Then, Congress' role becomes, as Prof. Natelson puts it, purely ministerial, like that of a diplomat acting as agent for a sovereign government in its dealings with other sovereign governments. (Which to my mind is perfectly fitting.) Congress has no will or power of its own WRT the COS or any of its procedures, rules, or subject matter.

I sense perhaps what aggravates you even more than the "Application" issue is the "aggregation" issue. It is "best evidence" for upholding the well-precedented historical and juridical view that Article V does not recognize a "general convention" as an Article V COS. From this, I infer that a CALLED convention is always called for a reason, or reasons. Otherwise, to me, it might just as well be yet another drunken frat party, or late-night bull session of a bunch of stoned underclassmen.... Something completely beneath the dignity of the U.S. Constitution.

Aggregation sets the criterion of states' intent to address common concerns, as stated in their Applications, by proposing and ratifying amendments to the Constitution. Thus, you need 34 states sending Applications addressing substantially similar subject matter. Then, once you've got 34 states, Congress MUST issue the CALL for the COS. And completely steps out of the picture, not to return until the Convention concludes its business, and actually proposes amendments.

Then, Congress steps back in, to specify which mode of Ratification will be used, by state legislatures, or by state conventions. After Congress "disposes" of this matter, whichever ratification mode they choose, Congress is not further involved in the ratification process, other than to validate and record the states' votes.

But here's some news that might cheer you up: According to The Article V Library, there are now 32 applying states that have qualified for aggregation by the National Archivist, for the purpose of convening a COS on a proposed balanced-budget amendment to the Constitution.

Only two more states to go.... :^)

Thanks ever so much for writing, PJ!

[Publius]

Actually, the count for a balanced budget amendment is 28, not 32. The website hasn't updated the count with the results of House legal counsel's audit last year of the Archivist's pile of applications to include rescissions and reapplications.

The audit reduced the count from 34 to 26, and this year 2 more states piled on to make it 28.

[Jacquerie]

If Article V (less the last clause regarding equality of state suffrage) was by some magic removed from the Constitution, do you think the people/states would retain the power to frame our national government?

[betty boop]

Many ‘positive’ slogans and phrases can be used to steer the movement into activities and discussions that are distraction-resistant.

Indeed. It doesn't appear premature for doing a little PR spadework here. Just as Levin/ALEC have done so much "spadework" as to rules, procedures, and subject matter of the Article V COS, maybe we need to anticipate the public "reaction," once the COS hits the radar screen of the MSM and the other usual suspects, and try to prevent negative fall-out.

First we have to learn not to shoot ourselves in the foot by, e.g., avoiding language that invokes past history — mainly Democratic Party artifacts, such as Jim Crow, segregation, George Wallace, et al. — but which no longer suffices to describe the real situation on the ground right now. Second, we have to learn that it is always unwise to gratuitously provide the ammo that your opponent — let's face it, your enemy — will surely use to try to shoot you, to wound or kill.

When the COS hits the radar screen of the MSM, you can expect that these manufacturers of the Kultursmog will step up production such as you've never seen before, pumping out endless supplies of noxious gasses, empty nonsense, into what now passes for the public debate.

So try to deny them entry in the first place. Most people nowadays would regard the "Tenth Amendment Powers" as a term of art entirely disassociated from the idea of "State," let alone states' rights.

So let the MSM explain to the people what "Tenth Amendment Powers" are. That should slow 'em down for a while.

Certainly under that burden, they won't get to George Wallace — a Democrat — anytime soon. :^)

Thank you ever so much for writing, dear Hostage! It's always such a pleasure to hear from you.

[betty boop]

Thank you ever so much, dear Publius, for correcting the record here at FR.

You remind us of what an arduous, uphill climb getting Congress to CALL an Article V COS is, in the first place.

Have you had any news that the work of the National Archivist has improved, since Boehner created a special office within the National Archives, dedicated to research, adjudicate, and streamline aggregation matters; and caused that office to be filled, last January IIRC?

[Hostage]

So let the MSM explain to the people what "Tenth Amendment Powers" are. That should slow 'em down for a while.

Certainly under that burden, they won't get to George Wallace — a Democrat — anytime soon. :^)

"TENTH AMENDMENT POWERS"; I like that very much. It directs them to the Constitution and what the 10th Amendment says in the Constitution. It provides them no direct out, no direct means of hijacking the meaning of the Article V effort.

I'm going to ask people to use that because it's more than just handling the media, it's also the local legislators when they ask what is the ultimate purpose for such an undertaking.

Bravo betty boop!

[betty boop]

If Article V (less the last clause regarding equality of state suffrage) was by some magic removed from the Constitution, do you think the people/states would retain the power to frame our national government?

Let me put it this way. Unless Article V can successfully be invoked by We the People, the only other recourse that We the People have is: armed insurrection. And We the People are very well armed.

But not so well armed that we can confront the consolidated powers of the federal government, police and military, and expect we could prevail that fight.

Article V is a safety valve. Without Article V, We the People have no constitutional means of calling the federal government to account for its abuses against its own citizens.

We live in momentous times. I'll just leave it there for now.

Thank you, dear Jacquerie, for sharing your thoughts and concerns, which I mainly share.

[betty boop]

... the rules stipulate that the Convention [itself] may create [ad hoc committees], not just the standing committees.

Jeepers, I missed that part, on my first reading. But you're right. Natelson's proposed rules permit the creation of any ad hoc committee by majority vote of the Convention, provided that such a vote can occur only when a quorum of 26 state delegations are present to do business. If not, adjournment to the next day is required.

So this would mean that you only need 14 out of 34 state delegations to establish an ad hoc committee, which may or may not correspond in any way with the Convention CALL. So, it is possible that such "side issues" as the adoption of Sharia law, or of a marriage amendment, could get legitimate standing at the COS.

But whatever such an ad hoc committee ends up proposing, its findings and recommendations are still subject to a simple majority of the affirmative votes of 34 states, one vote per state delegation, before they can take effect as a proposed constitutional amendment. And then, they would have to survive the ratification process, requiring the assent of 38 states, not all of which have directly participated in the Convention.

Thank you ever so much, dear Hostage, for all the diligent research and "constitutional imagination" that you bring to bear on the language and scope of the CALL for an Article V COS. Which is a two-way CALL: first by the States; then by Congress in constitutional response.

THANK YOU!!!

[betty boop]

I’m beginning to have a better understanding, although far from complete.

Same here, dear trisham!!! THANK YOU!

[Publius]

Both the Clerk of the House and the Archivist of the United States are on the same spreadsheet.

[Political Junkie Too]

From this, I infer that a CALLED convention is always called for a reason, or reasons.

The reason is for proposing amendments.

I just want to know where the requirement to agree on the amendments beforehand originated.

Aggregation sets the criterion of states' intent to address common concerns, as stated in their Applications, by proposing and ratifying amendments to the Constitution.

Up-thread, Jacquerie cited Alexander Hamilton in Federalist #85, but he stopped short of the point of aggregation. Continuing, Hamilton wrote:

---

Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.

---

To me, this reads that Hamilton was not ruling out that states might try to offer amendments of "local interests," but that amendments addressing general liberty and security are more likely to get three-fourths of the states to ratify. How would "local interest" amendments get past an aggregation requirement before even calling the convention?

Or, maybe I'm reading that passage wrong?

-PJ

[Jacquerie]

<>I just want to know where the requirement to agree on the amendments beforehand originated.<>

Beats me. I've been asking the same question at FR for some time.

From Betty Boop’s link in #89, a few dozen states submitted general applications for a convention to propose amendments.

The lawyers at FR and CoS would have us believe they don't “count.”