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Page 11 C--The Congressional Decision of May 5, 1789
May 5, 1789,
after Congressman Theodorick Bland (VA) introduced the first state
application in U.S. history for an Article V Convention to Congress, he
moved to refer his state's application to the
Committee of the Whole on the state of the Union. The House then discussed how
Congress should deal all state applications specifically
whether the applications should be referred to any congressional
committee and if not, why not. Ultimately the House created a policy
for recording state applications for a convention call (later agreed to
in the Senate) which has remained unchanged
During the discussion the terms and conditions for a
convention call was discussed by the members of the House. This
included James Madison, who wrote the text of Article V at the 1787
Elbridge Gerry whose motion at the 1787 Convention inserted the
convention clause into Madison's text which ultimately became the final
language of Article
V. The images of the Virginia application and the
subsequent discussion can be read at left by clicking the images. The
discussion is reproduced below with images of the various participants
and a brief biography of each.
"After the reading of this application, Mr. BLAND [Theodorick
Bland, member Confederation Congress 1780-83; member House of
Representatives (VA) 1789-90] moved to refer it [the Virginia application]
the Committee of the whole on the state of the Union.
Mr. BOUDINOT: [Elias Boudinot, President Confederation Congress 1782-83; member House of Representatives (NJ) 1789-95; Director
United States Mint 1797-1805] According to the terms of the
Constitution, the business cannot be taken up until a certain number of
States have concurred in similar applications; certainly the House is
disposed to pay a proper attention to the application of so respectable
a State as Virginia, but if it is a business which we cannot interfere
with in a constitutional manner, we had better let it remain on the
files of the House until the proper number of applications come
Mr. BLAND thought there could be no impropriety in referring any
subject to a committee, but surely this deserved the serious and solemn
consideration of Congress. He hoped no gentleman would oppose the
compliment of referring it to a Committee of the whole; beside, it
would be a guide to the deliberations of the committee on the subject
of amendments, which would shortly come before the House."
MADISON [James Madison, delegate Federal Convention of 1787; member House
of Representatives (VA) 1789-97; Fourth President of the United
States (1809-17)] said, he had no doubt but the House was inclined to
treat the present application with respect, but he doubted the
propriety of committing it, because it would seem to imply that the
House had a right to deliberate upon the subject. This he believed was
not the case until two-thirds of the State legislatures concurred in
such application, and then it is out of the power of Congress to
decline complying, the words of the Constitution being express and
positive relative to the agency Congress may
have in case of applications of this nature. "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 convention for proposing amendments." From hence it must
appear, that Congress have no deliberative power on this occasion. The
most respectful and constitutional mode of performing our duty will be,
to let it entered on the minutes, and remain upon the files of the
House until similar applications come to hand from two-thirds of the
BOUDINOT hoped the gentleman who desired the commitment of the
application would not suppose him wanting in respect to the State of
Virginia. He entertained the most profound respect for her--but it was
on a principle of respect to order and propriety that he opposed the
commitment; enough had been said to convince gentlemen that it was
improper to commit--for what purpose can it be done? what can the
committee report? The application is to call a new convention. Now, in
this case, there is nothing left for us to do, but call one when
two-thirds of the State Legislatures apply for that purpose. He hoped
the gentleman would withdraw his motion for commitment.
Mr. BLAND.--The application now before the committee contains a number
of reasons why it is necessary to call a convention. By the fifth
article of the Constitution, Congress are obligated to order this
convention when two-thirds of the Legislatures apply for it; but how can these reasons be properly weighed, unless it be done in committee? Therefore, I hope the House will agree to refer it.
Mr. HUNTINGTON [Benjamin Huntington, member House of Representatives (CT) 1789-91] thought
it proper to let the application remain on the table, it can be called
up with others when enough are presented to make two-thirds of the
whole States. There would an evident impropriety in committing, because
it would argue a right in the House to deliberate, and, consequently, a
power to procrastinate the measure applied for.
Mr. TUCKER [Thomas Tudor Tucker, member House of Representatives (SC) 1789-93; Treasurer
of the United States, 1801-28] thought it not right to disregard the
application of any State, and inferred, that the House had a right to
consider every application that was made; if two-thirds had not
applied, the subject might be taken into consideration, but if
two-thirds had applied, it precluded deliberation on the part of the
House. He hoped the present application would be properly noticed.
GERRY,--[Elbridge Gerry, delegate Federal Convention of 1787; member House of Representatives (MA) 1789-93; Governor of
Massachusetts 1810-12; Vice President of the United States (1813-14)]
The gentleman from Virginia (Mr. Madison) told us yesterday, that he
meant to move the consideration of amendments on the fourth Monday of
this month [May 25, 1789]; he did not make such motion then, and may be
prevented by accident, or some other cause, from carrying his intention
into execution when the time he mentioned shall arrive. I think the
subject however is introduced to the House, and, perhaps, it may
consist with order to let the present application lie on the table until
the business is taken up generally.
Mr. PAGE [John Page, member House of Representatives (VA) 1789-97;
Governor of Virginia 1802-05] thought it the best way to enter the
application at large
upon the Journals, and do the same by all that came in, until
sufficient were made to obtain their object, and let the original be
deposited in the archives of Congress. He deemed this the proper mode
of disposing of it, and what is in itself proper can never be construed
Mr. BLAND acquiesced in this disposal of the application. Whereupon, it
was ordered to be entered at length on the Journals, and the original
to be placed on the files of Congress."
The May 5, 1789 discussion reveals several key points
about Congress' understanding of the application/call process of Article
Numeric count, used in one form or another, was
referred to by the members of Congress nine times during
its 1789 discussion as the basis for a convention call. Congressman
Bland's motion intended to have applications "considered" by a committee of
Congress based on the "reasons why it is necessary to call a
convention." Bland wanted these reasons "properly weighed" by the
committee. Thus the committee could decide whether the "reasons" were sufficient
to warrant calling a convention. Bland's motion would be
to made the convention process a committee of Congress thus entirely
controlled by Congress.
- A convention call is based on a numeric
count of applying states rather than the subject matter of the
- The object of the application is to cause a convention call. States apply for a convention not an amendment.
- Congress has no authority to deliberate on a convention call meaning no committee, debate or vote is permitted.
- No congressional committee may "consider"
application contents and decide whether to call a convention on the
basis of that content.
- Applications "lie on the table...until sufficient were made to obtain their object."
The House (and later the Senate) rejected
Bland's motion. The House decided
no application should be submitted to a committee for its
"consideration." This would imply Congress had authority "deliberate"
on the matter and thus Congress could refuse to call a convention
measure applied for"). Instead under the rules of the House (later
adopted by the Senate) all applications for an Article V Convention
"lie on the table" meaning the application remains in force "until
sufficient were made to obtain their object" [a convention call].
When this occurs Congress must call a convention. Thus there is no
committee, debate or vote on whether Congress will call a convention.
The phrase "lie on the table until
sufficient were made to obtain their object" is recognition of the fact
a convention call is a continuing obligation of Congress transcending the usual parliamentary procedure of matters placed before Congress which "lie on the table." Under parliamentary rules of Congress if
something "lies on the table" it remains in effect until acted upon but
dies on adjournment of Congress at the end of its session. The matter must be then resubmitted to a new session of Congress. Some convention opponents have argued the term of effect for an
application is only for the session of Congress in which the
application is submitted. Therefore, unless the states submit the necessary
two thirds applications within a single session of Congress, the applications no
longer have effect when Congress adjourns. The
comments of May 5, 1787 however make it clear Article V applications
("applications of this nature") are an exception to this parliamentary
rule on which Congress has no deliberative power.
The Founders were
fully aware Congress would meet in sessions. They specified in the
Constitution members of Congress have terms of office. They specified a date each year when
Congress would meet. From their own experience in state legislatures
they knew it was common practice for each meeting of a legislature in a
new year to be called a new session or term of the legislature. However the
obligation to call a convention is a continuing
obligation on all sessions of Congress and therefore transcends any particular session of Congress.
If this were not the case, the call would not be "peremptory" as
described by Hamilton. Congress would simply let its session expire and
thus terminate the obligation to call a convention even if the states
somehow met this standard by simply adjourning before issuing a call.
Moreover adjournment in Congress requires consent by both houses
meaning a vote. This vote is a form of "deliberation" on whether
to call a convention and as described in May, 1787, not permitted. Thus
regardless of whatever session applications are submitted, Congress is
bound to call a convention
when the applications show two thirds of the states applied.
All applications therefore have full effect regardless of date of submission. All applications share the same constitutional "subject" or "object": to cause a convention call. "On the application of ...two thirds...Congress shall call" thus refers to the applications by two thirds of the state legislatures becoming a single application for a convention call ("until two-thirds of the State legislatures concurred in
Once this composite application accomplishes its constitutional object
it is considered discharged. The composite application cannot be used
by Congress again to cause a convention call because of the terms of
Article V ("shall call a convention
for proposing amendments" not conventions).
Thus Congress is required
to call a convention each time a set of applications ("on the application)
applications by two thirds of the several state legislatures. As the
basis of determination is numeric count rather than amendment subject
the composite can be comprised of any number of amendment subjects provided each set has only one application from each state creating that particular composite. Only when
all composite sets of applications which create two
thirds application by the states are discharged (presently 11 sets) is
Congress is no longer obligated to
call a convention based on that composite set until the states submit a new set of applications creating a new composite.
This explains why Congress, until 2015, used the only
option open to them to not call a convention. They simply refused to
count the applications by burying them in the congressional archives.
Despite this it was a well known fact the states had submitted
"hundreds of applications" for a convention call. Politically Congress
opposed obeying the Constitution as demonstrated by its continual
opposition in federal court to lawsuits mandating it do so. Therefore
Congress made no effort to correct the public perception (aided by the
efforts of JBS/Eagle Forum and an inept misinformed mass media) that
the applications on record were insufficient to cause a convention
call. However all this fell apart when FOAVC, starting in 2007, began publishing the actual public record of the applications and other associated
public record (such as the discussion of May 5, 1787) on the Internet
for all to examine. By 2015 the effect of this published public record
was so strong even Congress could no longer ignore it.
Congress provided no means of retrieval or notification by the
congressional archives to notify it when the states had applied in
sufficient number to warrant the
convention call. In other words, no mechanism was provided to take the
applications "off the table" when required. The fault for this lies
with those in Congress in May, 1787 who should have, but did not,
establish such a mechanism for taking applications "off the table" when
required by the terms of Article V. A simple rule in the House (and
later the Senate) phrased such that it became a permanent rule of
Congress by noting in the rule it was mandated by constitutional
provision and thus was a continual permanent rule just like the
applications themselves would have sufficed. However Madison and the
others failed to do this probably because it never occurred to them
Congress would deliberately violate the Constitution in order to
further their own political power. However Congress is now counting the
applications in its first serious attempt to rectify what has to be the
most serious constitutional violation by the Government in United
Madison's comments (and others) make it is clear Congress has no
"deliberative" power on a convention call. Thus, Congress can neither
debate nor vote on a
convention call eliminating most of the usual processes of passage through Congress. The exception is "unanimous
unanimous consent, Congress creates a call with
the foregone conclusion, because the Constitution demands it, that all
membership agrees with the call thus eliminating any debate or vote. A
convention call sets a time and location for the convention. This issue
of time and place could be debated in Congress. However if
convention opponents in Congress attempted to use this tiny window of
discretion to prevent a convention call by endlessly arguing the time
and place the states would have every right to hold a convention
without a congressional call as they did in September, 2016.
While not called "same subject" (the term later
popularized by JBS/Eagle Forum in their anti-convention campaign) the
principle of "same subject" was
considered by Congress at the earliest possible moment (submission of
the first state application to Congress in 1789) and rejected. As
Huntington, "because it would argue a right in the House to deliberate,
and, consequently, a power to procrastinate the measure applied for."
Thus the public record proves emphatically a convention call is
based on a numeric count
of applying states rather than by amendment subject within an
application. The public record proves no
application may be "considered" by a congressional committee.
public record proves Congress has no power of deliberation or vote on a
convention call. The public record proves applications transcend
congressional sessions and remain an ongoing obligation of Congress
meaning all applications regardless of date of submission remain in
full effect until they accomplish "the object" of causing a convention
call. The public record proves applications are arranged in sets of two
thirds applications by the state legislatures and the composite set
becomes a single application on which Congress must call a convention.
The public record proves a composite set of applications can only
be used once to cause a convention call.
Page Last Updated: 5-MARCH 2017