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Page 18--The 14th Amendment and the Article V Convention

An argument used by convention opponents is the convention clause of Article V fails to provide the "details" about an Article V Convention i.e., selection of delegates, ratio of vote to propose an amendment and so forth. These opponents argue because Article V is "vague" on these details a convention cannot or should not be convened despite the fact the states have satisfied the two thirds requirement mandating a convention call. These opponents ignore the fact Article V does not have to provide these "details." Article V is part of the Constitution. As with all constitutional questions, all the Constitution is applied. The "details" are found in other clauses of the Constitution.

This page briefly discusses the constitutional effect of the 14th Amendment on an Article V Convention. As with all of the Constitution every clause is effected by every other clause of the Constitution. This is especially true for the effect of the 14th Amendment on the convention clause of Article V. The amendment explains why a convention must propose its amendment based on a two thirds vote of state delegations (assuming a quorum of state delegations). It explains why a convention must be comprised of elected delegates. It explains why a convention vote is conducted by state delegation rather than by individually elected citizens.

The 14th Amendment states (in part): "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

As discussed in more legal detail  the Supreme Court has ruled all members of a clearly defined legal class must be treated equally under the law  (See: Discussion Page 17 E). The Court has ruled, "Classification [discrimination] must always rest on some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without any such basis." In sum: there must be a reason and a basis for discrimination [classification] or it is unconstitutional. In the case of an Article V Convention, the question is whether there is a basis in the Constitution to classify the convention in a separate legal class other than a single legal class which includes both convention and Congress. By separating convention and Congress into two legal classes each mode of amendment proposal may then be treated differently under the law. There appears to be no constitutional basis to do so.

The function of both convention and Congress is constitutionally identical, i.e., the proposal of amendments to the Constitution. The effect of the proposal, if ratified, is identical. The Constitution authorizes no other political bodies to make amendment proposal. Article V strictly and equally limits the power of amendment proposal upon both convention and Congress. Given these facts, there is no possible way to classify the two bodies differently, i.e., two legal classes, as they are identical as to authority, effect, limit, and exclusiveness. As the Constitution excludes all others from amendment proposal, there is no constitutional basis for anybody to create a classification. There is no authority in the Constitution allowing any political or judicial body to do so.

Hawke v Smith, 253 U.S. 221, 227 (1920): "It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed." More importantly, there is no "difference which bears a reasonable and just relation to the act in respect to which the classification is proposed" as the functions of both Congress and convention are identical in all respects. Gulf, C.& S.F. Ry. Co. v Ellis, 165 U.S. 150 at 155 (1897). (See: Discussion Page 17 E and Page 17 G).

The Supreme Court has stated the basic principle that for a convention and Congress to be viewed as two separate legal classes there must be a basis in the Constitution for such discrimination which there is none. Therefore any law which applies to one portion of the legal class must equally apply to all portions of the legal class. This explains why a convention must propose amendments based on a two thirds vote of that body. Article V mandates Congress propose amendments based on a two thirds vote by that body. Under the terms of the 14th Amendment's equal protection clause, if the law (which in this case is the "Supreme Law" of Constitution), mandates one portion of the legal class, Congress, propose amendments by two thirds vote of that body, the other portion of the legal class, the convention, must also propose an amendment by two thirds vote of that body.

Elected Delegates

The 14th Amendment principle of equal protection under the law extends to all aspects of a convention including delegate selection. All members of Congress are elected as required by law (the Constitution) (unless they are appointed to fill a vacancy which has no bearing in this case). As members of Congress are elected then so too must convention delegates be elected. Indeed it would nearly impossible to assert otherwise as all other groups associated with the amendment process (state legislatures and state ratification conventions) consist entirely of elected members. Similarly, attempting to "instruct" convention delegates on how they will vote, what they will propose or what subjects they will consider is unconstitutional because, under law (the Constitution) Congress cannot be so instructed in its consideration of an amendment proposal.

Thus the same election laws which regulate election of members of Congress must equally apply to election of convention delegates. Moreover the qualification of office must be equal. The lowest standard of election to office in the Constitution is for members of the House of Representatives. According to the Constitution, "No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shalll be chosen." Thus this constitutional standard become the election qualifications for delegates to a convention. Further members of the House are elected to districts. Convention delegates are thus elected from the same districts. The Constitution however prevents any person from holding two civil offices simulataneously. Thus there will be two individuals representing the district, one for Congress and one for the convention.


State Delegations

As convention delegates are federal, rather than state, that is authority for the convention originates in the Constitution (See Discussion: Hawke v Smith, 253 U.S. 221 at 230 (1920) (See: Discussion Page 17G). If delegates and members of Congress must be treated equally under the law, then the requirements for election must be equal. The Constitution establishes minimum standards for election of a member in Congress which is membership in the House of Representatives. This standard of representation (age, residency and minimum years of citizenship) must equally apply to the election of convention delegates. House members are elected from congressional districts which are apportioned in the state based on equal population. However as the populations for each state vary, so too do the number of congressional districts in each state. Consequently convention delegates must be elected from the same congressional districts to in order to equally represent the people. The number of delegates from each state must be equal to the number of congressional districts in the state.

However the Constitution mandates in amendment process each state is equal. In the amendment process each state is permitted one application for each set of two thirds applications to cause a convention call. A single state cannot submit 34 applications and cause a convention call. Thus each state gets one vote in applying for a convention call. In ratification each state has one ratification vote. Again a single state cannot vote 34 times to ratify a proposed amendment and it be ratified. In the amendment process each state has one "vote" regardless of population an thus are equal. Because the states are equal, votes at the convention must be based on an equal state basis rather than varied state population. Otherwise a few large population states with their large numbers of elected delegates would control the convention. Notably, this was the major concern of the delegates at the Federal Convention of 1787 who wrestled over the question of representation at the federal level--equal representation of the states versus state population.

Ultimately the delegates to the Federal Convention of 1787 resolved their problem by creating two houses of representation in Congress--one based on equal state representation (the Senate) and the other on state population (the House). However the Constitution mandates "a" convention for proposing amendments (singular) meaning 'one' convention not 'two.' Thus within the confines of a convention, (one house), equal representation must occur. No vote shall have any more weight than any other vote. As each state varies in population a vote based on that variation cannot be equal. A larger, more populous, state has more votes (say) on the question of a proposed amendment than a smaller, less populous, state. This violates the  principle of equal protection under the law and is unconstitutional. As citizens in the less populous state have less representation (say) in the question of an amendment proposal they are denied equal protection under the law to have an equal say in a question which all in the nation are affected equally. Being equally effected they must have equal say.

In order that the population in each state is equally represented regardless of population but so that population is still represented, elected delegates from each state are gathered into state delegations. In this way populations are equally represented within the state delegations and states are equally represented at the convention. In effect the state delegation becomes an artificial person with one vote. Each state delegation then votes within itself on any question and once decided casts its one vote on the question. Thus a total of 50 votes are recorded at the convention for each question presented to it. It therefore requires 34 votes (assuming all delegations are present) to propose an amendment. This is not the first time such a system has been successfully used in the United States. The Federal Convention of 1787 and the Congress of the United States prior to enactment of the Constitution both used equal state delegations as the basis of vote.

Quorum

Many operational questions of a convention are resolved by the application of the 14th Amendment's equal protection clause to a convention. A significant one is the question of quorum. In Congress the Constitution demands a quorum before either House may conduct business. The Constitution defines a quorum as a "majority" of members or fifty percent of the membership plus one. Thus in Congress a quorum of members (fifty percent plus one) may vote to propose an amendment without two thirds of the full membership of the House present. As it is in Congress, so it is in a convention. Assuming a quorum of state delegations (presently 26) and within each state delegation a quorum of members (otherwise the convention will determine that delegation to be absent), two thirds of the state delegations present may vote propose an amendment without all state delegations present or all members within the state delegations present. A majority of the quorum of state delegations present may conduct other business of the convention as required.

While this may appear a concern, it is not. The quorum rule facilitates full representation at the convention and ensures no single delegate can prevent the convention from conducting its business. (If the quorum rule did not apply then by simply not attending a single delegate could prevent a vote on any amendment proposal or prevent a state delegation from voting on the proposal). Fully aware of the quorum rule and the possibility of proposal by a small group of delegations, all state delegations and the members within them will be present at every session of the convention in order to guard against this consequence. Thus the people that elected the delegates will therefore be fully represented at all times.

The Supreme Court  in Missouri Pacific Ry. Co v State of Kansas, 258 U.S. 276 (1919) (See Discussion Page 17F) ruled on the issue of quorum in relation to the amendment proposal process of Article V. The Court quoted Speaker of the House Thomas Reed on the passage in 1898 of the amendment to the Constitution providing for the election of Senators by vote of the people, when in reply to an inquiry from the floor as to whether such vote was in compliance with the two-thirds rule fixed by Constitution, Reed said, "The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says 'two-thirds of both houses.' What constitutes a house? A quorum of the membership, a majority, one-half and one more. That is all that is necessary to constitute a house to do all the business that comes before the House. Among the business that comes before the House is the reconsideration of a bill which has been vetoed by the President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the House is present the House is constituted, and two-thirds of those voting are sufficient in order to the accomplish the object."

Therefore, as with Congress, the rule of quorum, a majority plus one for both the state delegations and the members comprising each state delegation will apply, meaning such a quorum constitutes the convention and it may proceed with its business.

Page Last Updated: 5-MARCH 2017