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Page 11 D--The Development of Article V at the Federal Convention of 1787

Introduction

The primary disagreement between those advocating a "closed" "same subject" Article V Convention such as COS/CFA and those advocating an "open" "numeric" convention is whether the American people have direct or indirect input in amendment of the Constitution. "Closed" advocates believe the American people should have no direct input in the amendment process of their Constitution. "Closed" advocates believe already  elected state legislators are empowered to control all aspects of the convention amendment process without further electoral consent by the American people.

There is no record in any state thus far supporting the "closed" convention advocated by COS/CFA presenting the question of whether the electors of that state desire their state legislators assume total control of an Article V Convention without further input from them (See Page 5 B). In other words the American people have thus far been denied any opportunity to decide the question of a "closed" versus an "open" convention. "Closed" advocates believe because Article V permits state legislatures to apply for a convention call this clause automatically extends an implied power to control
delegate selection and convention agenda of an Article V Convention. The Supreme Court has ruled there are no implied powers in Article V. The Court stated, "where the intention is clear there is no room for construction and no excuse for interpolation or addition" (See Page 17 K).

"Open" advocates believe the source of sovereignty for this nation at all times rests with the American people. The Supreme Court agrees (See Page 17 C). Only the people have the right of "alter or abolish." Therefore before any Article V Convention occurs the American people have a right (indeed the obligation) of direct electoral input in that amendment process by determination of representation at the convention and thus agenda of the convention. Further participation in the convention process is permitted indeed expected. "Open" convention advocates believe Article V limits state legislatures
only to applying for a convention call. Once the proper ratio of applications required in Article V is achieved and Congress calls the convention as required, control of the convention amendment process by legislatures (and Congress) ends. The American people then elect convention delegates to represent them and the convention is held.

The agenda of the convention consists of whatever amendment subjects elected state legislatures have previously submitted and any subject the American people desire be discussed by representatives they have chosen. Until a convention proposes an amendment thus commencing the ratification process neither state legislatures nor Congress have any further part in that process. The power to regulate the Article V Convention by either state legislature or Congress is not enumerated in the Constitution and therefore does not exist. These legislative bodies may enact legislation which facilitates the right of the American people to electorally chose its representation (just as state legislatures established laws to facilitate holding conventions to ratify the proposed Constitution (See Page 12 Table 14) but cannot substitute laws replacing electoral right with dictatorial edict of the state legislatures and special interests. As enucleated by the Supreme Court conventions in Article V are "deliberative assemblages representative of the people, which it was assumed would voice the will of the people"
(See: Page 17 G) [Emphasis added].

The question is did the Federal Convention of 1787 intend state legislatures or the American people control an Article V Convention? "Closed" advocates believe the Federal Convention of 1787 intended state legislatures control an Article V Convention by having authority
to propose amendments directly to the Constitution through their applications without electoral participation of the American people. Thus the convention was intended to be no more than a constitutional facade regulated strictly by the legislatures rubber stamping the already approved amendment proposals of the state legislatures. The purpose of the application therefore was to propose an amendment with an incidental effect of causing a convention call.

"Open" advocates believe the convention is an constitutionally autonomous body accountable only to the American people. The convention has authority to propose amendments regardless of any "instructions" a state legislature may give or any amendments it may propose within an application it submits to Congress. Thus the purpose of an application is to apply for a convention call, not to propose an amendment. The sole limitation however is any amendment subject within an application automatically becomes part of the agenda of a convention subject to its consideration. As convention delegates are elected the choice of what amendments are proposed is left to the American people to decide.

The only way to determine the intent of the Federal Convention of 1787 is to examine its record in detail in order to settle the question of whether it intended applications by state legislatures for an Article V Convention were to allow state legislatures to propose amendments directly to the Constitution or merely intended to cause Congress to call a convention with the subsequent convention elected by the people determining what amendments would be proposed.

The purpose of this section therefore is to:
"Records of the Federal Convention of 1787" by Max Farrand (1937 Revised Edition) will be the source the examination of the development of Article V. In its December 17, 1911 review of Farrand's three volume work (later revised in 1937 to include a fourth volume), the New York Times said Farrand's work was "the standard authority on the work of the Constitutional Convention ... indispensable for any real interpretation of the Constitution." Throughout the discussion copies of pages of the convention record from Farrand as well as the Rogers article will be presented which may be clicked to enlarge for reading purposes. Text will be underlined as necessary for ease of reading.

The Rogers article, published in the Harvard Journal of Law & Public Policy in 2007, may be read in full at this link. Copies of pages from the article will be presented as necessary. The Harvard Journal of Law & Public Policy is the student law review for Harvard Law Schools published three times annually. Rogers, a 2nd year law student in 2007, was senior editor of the Journal. As senior editor Rogers may have published his article without review by other staff. He has since moved on to become a practicing attorney. Rogers relies heavily on Farrand as his primary source for the article's argument of state legislatures having authority to control convention agenda in their applications. Rogers ellipses quotes from Farrand in his article as the basis for his argument. He fails to provide full quotes or pages of Farrand in his article whereby the reader can judge for himself the validity of the ellipsed quotes and the context they are taken from. In short Rogers presents his "version" of the events at the Federal Convention of 1787. Examination of the full public record will tell whether Rogers' "version" is correct or not.

Examination of the Rogers Arguments

005The Rogers article contains factual errors. On page 1009 Rogers states "By 1969, thirty-three states had submitted applications calling for a convention to address the apportionment issues, one short of the thirty-four needed." Rogers then states, "Shortly afterwards, however, several states rescinded their applications, and the momentum for a constitutional amendment to overturn these Supreme Court decisions declined." He fails to explain why, when Article V does not permit it, states can "rescind" applications or why an amendment is required to overturn a Supreme Court decision. He also fails to mention in 1978 Delaware became the 34th state to submit an application on the subject of apportionment.

006O
n page 1010 Rogers states "The first state application for a balanced budget amendment was made by North Dakota in 1975, and the thirty-second was made by Missouri in 1983." Public record shows the first state application for a balanced budget amendment was made by Oklahoma in 1955; the Missouri application was the thirty-seventh state application. The states have satisfied "same subject" four times including direct election of senators. Rogers quotes another author (Caplan) saying "[T]here remains no evidence that the convention threat by itself forced the Senate to approve the [Seventeenth A]mendment." The fact sufficient applications had been submitted by the states on the subject of direct election of senators to cause a convention call on that issue alone is not mentioned by Rogers.

003The fundamental argument of Rogers article is states have authority to limit a convention by means of Congress' ministerial "duty to group applications according to subject matter. Once a sufficient number of applications have been reached, Congress must call a convention limited in scope to what the states have requested." Rogers does not mention the May 5, 1789 discussion by the members of Congress in regards to referring state applications to a congressional committee for its "consideration" in his article. He does not mention such referral was rejected by Congress. He does not discuss the potential abuse of permitting Congress to "group applications according to subject matter" such that Congress could group the applications by subject matter in such a way as to not to call a convention.

Rogers bases his argument for state limitation of convention agenda on events which occurred at the Federal Convention of 1787. Rather than provide full quotes of these events Rogers instead paraphrases stating, "Gouverneur Morris and Elbridge Gerry made a motion to amend the article [Article V] to reintroduce language requiring that a convention be called when two-thirds of the States applied for an amendment." He paraphrases Madison's subsequent statement saying, "Madison stated that he did not object to the convention method, but in expressing what proved to be prophetic concerns, he pointed out that "difficulties might arise as to the form" the convention would take."

FOAVC believes Rogers failure to fully quote what essentially is the heart of his argument (the Gerry/Morris amendment) is not accidental. As senior editor Rogers was in a perfect position to permit whatever length of article he desired for publication in the student journal. Using full quotes directly from Farrand rather than paraphrasing would have added  little in additional length but may have resulted in a different conclusion than the one presented by the 2nd year law student. The question is simple: did the Gerry/Morris motion require language in Article V that a convention be called when two thirds of the States applied for an amendment?

If Rogers' statement is incorrect as to the intent of the Gerry/Morris amendment, that it intended Congress call a convention when States applied for an amendment, then it follows the assumptions he builds on that misinformation throughout the rest of his article
are also incorrect. As far as FOAVC can determine no one has ever examined the 2nd year law student article of James Kenneth Rogers for accuracy. Yet all "same subject" advocates depend on this article as it is the most cited reference for their position. As far as FOAVC can determine none of these advocates have ever discussed the fact the article on which they so heavily rely was written by a 2nd year law student who, as far as can be determined, never wrote another law review article, contains factual errors regarding public record, and fails to provide all factual information relevant to the subject matter of his article.

As FOAVC has repeatedly demonstrated groups and individuals who either oppose a convention or hope to use it for their own purposes all present their "version" of the events surrounding the Federal Convention of 1787. None of these groups or individuals ever indicate they believe the American people have a place or say in the amendment process. Rather they reserve that right exclusively for themselves. The response of FOAVC has been, and continues to be, when examining works such Rogers to present the full public record and allow the reader to make up his mind for himself.

Therefore having presented the basic premise of the Rogers article as well as allowing the reader the opportunity to read his article in full if they desire, the full history of the development of Article V will now be presented in the following pages. Following this presentation, based on the public record presented, FOAVC will then examine whether the Rogers article is accurate and thus answer whether the Federal Convention of 1787 intended an Article V Convention to be a "closed" "same subject" convention or an "open" "numeric" convention.


Continued Page Eleven E

Page Last Updated: 5-MARCH 2017