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Page 11 B--The "Numeric" Count Historic Record
There is no historic record of the "same subject" theory for
counting state applications for a convention call. That concept of
counting applications for a convention call was neither contemplated
nor discussed in the 1787
Convention or afterwards. The public record shows "same subject" traces
origins to the JBS/Eagle Forum "Only Two More States" campaign (See: Page 6 C).
"Same subject" was a necessary political creation for JBS/Eagle Forum
in order to oppose the calling of an Article V Convention. As the
states had already
reached the required two thirds numeric count of applying state
legislatures described in the Constitution on at least nine occasions before the
JBS/Eagle Forum campaign began, without "same subject" there was no
basis on which to oppose the calling of a convention.
Politically, JBS/Eagle Forum advocated "the Constitution should be obeyed as is."
This political posturing meant JBS/Eagle Forum could not appear to
outright advocate the Constitution be disobeyed (even though by urging
a convention not be called when otherwise mandated they were doing
exactly that). Thus the JBS/Eagle Forum had to create a pretense to explain why
a convention was not yet mandated and thus could be prevented before the terms of the pretense were satisfied. Hence they created "same subject."
These facts explain why JBS/Eagle Forum have always
advocated "same subject" as the basis for counting applications but
never provided historic legal proof of "same subject" being the basis for counting
applications prior to the commencement of their anti-convention campaign.
Much like so-called "rescissions" likely JBS/Eagle Forum gave no
consideration to whether "same subject" was legal or constitutional
(See: Page 6 F Fotheringham Exchange).
Ironically, the public record shows this pretense has also be satisfied
by the states on at least four occasions (and was already satisfied
prior to the start of the JBS/Eagle Forum campaign). Thus, whether by
the "numeric" count as intended by the Founders or by the pretense of
"same subject" as created by JBS/Eagle Forum, Congress is obligated to
call a series of Article V Conventions.
The historic record supporting the "numeric" count of
state applications for a convention call dates back to the records of the 1787 convention. James Madison and Alexander
Hamilton who authored and seconded respectively what became the final
version of Article V at the 1787 Convention both addressed the convention clause in great detail. Hamilton
succinctly described the convention procedure, the
obligation of Congress to call a convention and the basis for such
obligation in Federalist 85 (published August 13, 1788). Madison
discussed the procedure, obligation and basis for a convention call in
Congress on May 5, 1789.
Excerpt from Federalist 85
opposition to the probability of subsequent amendments, it has been
urged that the persons delegated to the administration of the national
government will always be disinclined to yield up any portion of the
authority of which they were once possessed. For my own part I
acknowledge a thorough conviction that any amendments which may, upon
mature consideration, be thought useful, will be applicable to the
organization of the government, not to the mass of its powers; and on
this account alone, I think there is no weight in the observation just
stated. I also think there is little weight in it on another account.
The intrinsic difficulty of governing THIRTEEN STATES at any rate,
independent of calculations upon an ordinary degree of public spirit
and integrity, will, in my opinion constantly impose on the national
rulers the necessity of a spirit of accommodation to the reasonable
expectations of their constituents. But there is yet a further
consideration, which proves beyond the possibility of a doubt, that the
observation is futile. It is that the national rulers, whenever nine States concur, will have no option upon the subject.
By the fifth article of the plan, the Congress will be obliged "on the
application of the legislatures of two thirds of the States [which at
present amount to nine], to call a convention for proposing amendments,
which shall be valid, to all intents and purposes, as part of the
Constitution, when ratified by the legislatures of three fourths of the
States, or by conventions in three fourths thereof." The words of this
article are peremptory. The Congress "shall call a convention." Nothing
in this particular is left to the discretion of that body. [Emphasis added]. And
of consequence, all the declamation about the disinclination to a
change vanishes in air. 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.
If the foregoing argument is
a fallacy, certain it is that I am myself deceived by it, for it is, in
my conception, one of those rare instances in which a political truth
can be brought to the test of a mathematical demonstration.
[Emphasis added]. Those who see the matter in the same light with me, however zealous
they may be for amendments, must agree in the propriety of a previous
adoption, as the most direct road to their own object."
Hamilton stated emphatically the "peremptory" requirement that Congress call an Article V Convention was based on a numeric
count of two thirds of the state legislatures. Hamilton made no mention
of the applications needing to be on the same subject before Congress
was required to call a convention. If Hamilton had believed this were
the case he would have been required to explain this exemption because
of the requirements of English grammar not to mention political consistency both of which he
was obviously familiar.
The particular text of Article V emphatically states Congress shall "call
a convention for
proposing amendments" (plural). If, however, the text actually was
intended to convey the convention was limited to the proposal of a
single amendment (singular) as determined by Congress with the
applications causing the call required to be all on the same amendment
subject (singular) in order to obligate Congress to the task, then
Hamilton would have been obligated, at the minimum, to explain how a
word written in its plural sense actually meant its singular purpose and
form. Given Hamilton fully understood the basics of English
grammar and the political consequences of making such an obvious false
statement, the only conclusion possible is Hamilton did not discuss
this variation in text because the 1787 Convention did not intend that it was to exist.
reference to a "mathematical demonstration" to prove a political truth
is final proof the 1787 Convention did not consider "same subject" to
be the constitutional basis for counting applications. The
obvious fact is that to "count" something means to use a series of
in sequential order to determine the total number of items in
a collection, thus a mathematical demonstration. If the convention had
intended "same subject" to be the basis of a "count" then the entire
sentence of Article V, to satisfy the basis demands of English grammar,
would be written entirely differently than that in the Constitution.
Some have suggested the phrase "enables the general and the State governments to originate
the amendment of errors" [emphasis added] written by Madison in
Federalist 43 proves the states (state legislatures) can propose
amendments. This belief is misplaced. First, it is disproved by the
record of the 1787 Convention. Second, those asserting this phrase as
proof fail to read Article V for what it states. Article V clearly reads that Congress can only call a convention "on the application of two thirds of the several state legislatures." Thus, the state legislatures "originate" the amendment process of an Article V Convention. Madison does not write the "State governments can propose
the amendment of errors." Instead, based on the record of the 1787
Convention, Madison was referring to the fact that the amendment
process must start either in Congress or with the applications by the several state legislatures, hence, "originate."
FOAVC believes the plain language of the Constitution
precludes "same subject" as the basis for counting state applications
for a convention call. The Constitution clearly describes a
convention for proposing "amendments" not "amendment." Thus, this plural form describing both the authority and
limiting the purpose of the convention in a single phrase permits
multiple amendment proposal by a convention which automatically
limiting the convention to a single amendment subject (except by its
own autonomous decision). This includes any
legislation, rule or call enacted
by Congress intended for that purpose. The Supremacy Clause of the Constitution (Article VI, Clause 2)
means Congress cannot change the text of Article V except by amendment
and thus any legislation, rule or call attempting to limit a convention to the
proposal of an "amendment" is unconstitutional.
The same principle
applies to any language within an application or any state law
enacted by a state
legislature "instructing" convention delegates to
limit their agenda to a specific amendment subject. One state cannot
dictate the actions of another. Thus a convention cannot be limited to
discussion of a single amendment subject based on the instructions of a
single state or group of states except by its own consent nor
can the basis of the call which convenes a convention be limited by the
pretense of "same subject."
Finally the rules of English grammar to which the delegates to the 1787
Convention were finely tuned are violated by this interpretation. The
rules of English grammar forbid interpretation of the meaning of a word
used in its plural sense to be that of its singular sense. Thus, when
the word "amendments" is employed in a sentence the plural meaning of
the word is attached, not its singular meaning, "amendment." Those
proposing "same subject" are forced to violate the rules of English
grammar in order to assert their position. If for no other reason than
the rules of English grammar do not permit it, the assertion of "same
subject" cannot be true as it requires the word "amendment" instead of
the word "amendments" to be executed.
During the ratification process of the Constitution
(September 20, 1787 to May 29, 1790) the proposed Constitution was
the most debated issue in America politics. The consequences
of every provision in the proposal Constitution was debated extensively
throughout the United States, including the Article V convention
clause. Had the text of this clause meant state applications for a convention call must to be on the same amendment subject and were therefore subordinate to
congressional interpretation prior to Congress calling a convention then constitutional opponents certainly would have raised the issue.
The obvious weakness of permitting Congress total control of both modes of amendment proposal would not have been ignored. There is no record of
any opponent (or supporter) raising this issue during the ratification debate. Indeed historic record makes it clear the text of the convention clause in Article V
was so evident and plain even the opposition to the Constitution
acknowledged its meaning and
intent as that as described by Hamilton.
The convention was a "popular ratification" convention elected by the people independent
of any control by the state legislatures textually assigned by Article
V to execute a portion of the amendment process. Records of the
Anti-Federalist papers written by prominent political figures in American (such as George Mason and Elbridge Gerry) primarily
used pseudonyms in their writings to oppose ratification of the
Constitution. Discussion of the amendment process as a perceived
weakness was described in Anti-Federalist 49 and makes this point even more clear (click images to enlarge).
Instead of "same subject" however the perceived
weakness of the Constitution discussed in Anti-Federalist 49 was
"states, as states, could not propose
amendments to the Constitution." Thus even the opposition to the
Constitution recognized and understood, the people in convention were empowered to propose amendments not the
states. The term "states" was also clearly understood and referred to
the ability of state legislatures to propose amendments to the
Constitution. Thus, even before the Constitution was ratified it was acknowledged by those present at the time and able to discuss the matter directly with those who attended the 1787 Convention, there was no such thing as a "Convention of the States." The finished version Article V always intended
it was a "Convention Of The People." The author "Massachusettensis" did
not agree with this fact but clearly understood that was the intent of
Article V. Anti-Federalist efforts
ultimately led to the proposal of the Bill of Rights in
order to satisfy their objections (See Page 6 F).
However the fact state legislatures cannot propose amendments to
the Constitution remains in place to this day and was not addressed by a constitutional amendment.