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Page 11 A--Discussion of the History of Article V (Cont.)
Counting the Applications
There are two lines of thought on how state applications for a convention call should be
by Congress in order to determine if two thirds of the state
legislatures have submitted applications for a convention call thus
requiring Congress to call a convention. These two methods of counting are described as "numeric" and
"same amendment subject" or "same subject." The method for
counting directly affects the political scope of the convention. The two political scopes of convention are known as an "open" or "closed" convention.
The "Open" Convention
In an "open" convention all subjects of all state applications
submitted to Congress (regardless of whether that specific application
convention call) are
automatically placed on the agenda of the convention (along with any
others elected convention delegates wish to discuss). The convention
then considers the entire agenda in open public debate. Following
debate the convention then determines by public vote whether a proposed
should be made by the convention on each of the issues in the agenda.
Until the sets of applications causing the conventions to be called are
exhausted or the convention proposes an amendment on that particular
issue, the subject matter of any application remains active on the
agenda of all conventions. In an "open" convention determination of the
outcome on various amendment proposals is actually decided by the
people prior to the convention during the election of convention
As the agenda of an "open" convention is already known and
as the convention can carry on no other business but amendment
proposal, the election of delegates favoring a particular amendment
proposal or proposals provides or denies the necessary political
support required to pass a proposed amendment at the convention. As
with Congress, because of the requirements of the 14th Amendment's
equal protection clause, the convention must pass a proposed amendment
by two thirds vote of the state delegations present assuming a quorum
of state delegations (See: Page 18). Therefore only a few amendment proposals will receive sufficient political support for passage. In
effect the people conduct a referendum on the
various amendment issues though the election of delegates. Thus the
people have a direct electoral input in which amendment proposals will be proposed
by the convention and exactly who represents them at that convention (See Page 19).
The "Closed" Convention
In a "closed" convention, only those applications for a particular
amendment subject are presented in the convention.
All other subjects in all other applications are excluded from the
convention agenda. As subject matter is pre-selected
debate on the issue is non-existent as proposal of the particular
amendment subject is a
foregone conclusion. Those supporting a "closed" convention favor
unelected "commissioners" controlled by state legislators as convention
attendees. The state legislature gives the commissioners a
pre-determined set of instructions on how they will vote, what
they write and even what they may say on the pre-determined subject of
the convention. Convention attendees face felony arrest for failure to
"instructions" from state legislators regarding their actions during
the convention. Under current
state laws the people have no place or say in a "closed" convention and
are not represented by anyone at the convention (See: Page 5 B).
subject" advocates believe two thirds of the states must agree in their
applications on a
specific amendment subject--some advocates even believe on identical
language--before Congress must call a convention. These advocates also
believe state "rescissions" must be recognized by Congress despite
the fact such recognition (removing the application from public record) violates both Constitution and federal
criminal law (See: Page 6 D).
Under "same subject"
before calling a convention Congress is first required to group the
amendment subject to determine whether two
thirds of the states have applied for the same amendment subject and
issues its call limiting the convention to that amendment subject.
subject" advocates believe a convention should be "closed." Effectively
"same subject" creates a veto for Congress allowing it to
determine which amendment subject will be considered by the convention, if any.
There is no provision in Article V allowing Congress such discretion. Indeed the historic record of the convention emphatically
proves the reason for a second mode of amendment proposal, the
convention, was to ensure Congress did not have the power to entirely
control the amendment process.
The grouping of amendment subjects is left entirely to the
discretion of Congress. Possible abuse of this power can be easily illustrated. Congress, for example, can title one amendment
subject group "balanced budget amendment" and another amendment subject
group "debt reduction amendment" and still another amendment subject
group "limited federal spending," terms all frequently found the
various state applications used by the states to describe the overall
goal of a balanced budget amendment.
However under "same subject"
determine the application is not an application for a
"balanced budget" amendment, but rather an application for "limited
spending" amendment. When completed instead of one set of
applications requesting a balanced budget amendment, there are
three groups of applications requesting "different" amendment subjects
none of which may contain the required two thirds necessary to trigger
a convention call. When Congress completes its separation of
applications into groups it then counts the state
applications within each amendment subject group it has created. If the
count in each amendment subject group is less than two thirds of the
states on that particular amendment subject Congress has created, it
then declines to call the convention for lack of the proper number of applications on a particular subject.
FOAVC has conducted it own investigation of this grouping system. It
determined it is very easy to group applications to preclude any amendment subject from receiving the necessary two thirds
required to cause Congress to call a convention. FOAVC has grouped the applications
into broad amendment subjects and believes four amendment subjects
have achieved the two thirds status necessary for a convention call. In
short, whoever groups the applications under "same subject" determines
whether there is a convention call.
In order that people
can judge for themselves the potential abuse this system of count
affords, FOAVC's grouping of state applications into various broad amendment subjects is found at this link.
public record clearly demonstrates Congress has little, if any,
interest in calling a convention and therefore is politically
motivated, if given the opportunity, to use any means to defeat a
convention call. Therefore if Congress is presented the opportunity to
use "same subject" it is likely it will determine an insufficient set of
applications on the same amendment subject exist to cause a convention
"Same subject" advocates favor a "closed" convention. By this combination these groups, who favor a
particular amendment or agenda, intend that only "their" amendment or
agenda is considered by the convention by excluding all other
before the convention begins. These
political groups therefore ignore all applications previously submitted
by the states except for those they themselves obtain from the
states. Reasons for ignoring these applications
(even if the applications support the group's amendment agenda) are
if stated at all. No legal reference or constitutional reason is ever given for the
rejection. Examples of groups favoring a "closed", "same subject" Article V Convention include
Convention of States, Compact for America and Balanced Budget Amendment
The major reason given by these political groups for a "closed","same subject"
convention is fear of a "runaway" convention which these groups all believed occurred at the 1787 Convention. However, as FOAVC
has proved, no such event ever transpired (See: Pages 6 A, 6 B).
Thus, this excuse for a "closed","same subject" convention has no merit
and must be
disregarded. Having disposed of the "runaway" convention excuse all
that remains is the fact those advocating a "closed", "same subject"
Convention do so for self-serving political reasons to advance their
particular political agenda based on the fear that in an "open"
convention their particular political agenda may not have the public
support necessary to get their amendment proposed in a convention
without the "help" of a pre-arranged "closed" convention.
The Numeric Count
Numeric count is supported by historic statements of
the Founders, official acts of Congress and rulings of the Supreme
numeric "count" of
applications is exactly that; a numeric count of applying states with
other terms or conditions attached. Thus, Congress is limited to simply
counting how many states have submitted applications for a convention
call regardless of subject matter contained within the application. The
content of any application as to proposed amendment is the
constitutional business of the convention. Therefore the subject matter
of an application is addressed
and disposed of by the convention, not Congress. The assumption
is the state, clearly desiring a
propose the amendment subject described in the application,
intends the contents of the application be considered by the
convention, not Congress. Further the people of
each state have an inherent right to present amendment subjects to a
convention which cannot be abrogated either by Congress or other
When the number of applying
states reaches two thirds of the states in the Union at the time of
submission of the final application creating the set of two thirds
Congress is peremptorily obligated to call a convention. Congress
no veto in this process. The only grouping of applications permitted
therefore is by sets of applying states (referred to by FOAVC as
"tiers"). Under the terms of Article
V, each time
the states submitted a set of applications amounting to two thirds of
the states at the time of submission of the last application (as some
tiers existed before the present 50 states) Congress is obligated to
call a convention.
Article V does not sunset applications. Therefore
all applications remain in full force (and are not archival
records) until each tier causes a convention call. Currently 11 tiers of applications, or eleven convention calls are mandated according to public record.
The reason for the 11 tiers of applications is until 2015 Congress
bothered to count the applications (with the intent of actually calling
a convention) thus creating this constitutional backlog. Had Congress
obeyed the Constitution, tracked the applications, counted accordingly
then called when mandated conventions would have been already held and
no backlog would exist.
As the state intends the subject matter of the application be disposed by the convention, the subject matter all applications
submitted by the states automatically become part of the convention
agenda. Thus all amendment subjects described in the state applications
must be discussed by the convention creating a "numeric", "open"
convention. Any amendment proposal that is discarded is
done by decision of the convention rather than Congress. Thus the only
grouping of state applications permitted is by state and date.
Currently Congress is counting applications by state
and date (See: Front Page).
favoring amendment of the Constitution by convention support the
numeric count of state applications as the basis for a convention call.
A "numeric", "open" convention has no pre-determined political agenda.
Instead, all political groups favoring a particular amendment or agenda
have to compete for
political support in the elections leading up to the
convention rather than control of a convention being handed to them
under the "closed",
"same subject" process. A "numeric", "open" convention makes the
people, not special interests, the final judge of what is amended in
their Constitution. The Supreme Court has ruled the convention is a
"deliberative assemblages representative of the people, which it was
assumed would voice the will of the people." (See Page 17 G).
If Congress determines to legislatively limit the
convention to only a specific amendment subject in its convention call,
it is Congress, not the convention,
which proposes the amendment. In combination with state laws making it
a felony for "commissioners" to disobey "instructions" of their state
legislators, it is clear the convention becomes nothing more than a
political facade representing special interests and not the
American people. FOAVC believes this is wrong. The convention, rather
being an independent proposal body equal to Congress as intended by the
Founders, instead becomes a committee of Congress and special interests
in the state legislatures. Article V
requires a two
thirds vote by both houses of Congress to propose amendments. Congress,
having legislatively determined the convention
agenda and limiting that agenda to specific subject by majority vote in
both Houses permits
Congress to unconstitutionally circumvent the
The Supreme Court has ruled the legislative and
amendatory powers of Congress are distinct and may not be intertwined.
Thus when Congress passes legislation it is in it legislative mode;
when it proposes an amendment it is in its amendatory mode. The Court
has made it plain Congress may not use its legislative mode to propose
an amendment. Article V does not grant Congress authority to determine
convention agenda. Congress has no authority to do anything but call a
convention if the states apply for one. Therefore attempts to limit
convention agenda by means of pre-determination through legislative
action are unconstitutional. Limiting convention agenda by means of
electoral selection of delegates and open public debate of agenda is