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Page 11 D--The Development of Article V at the Federal Convention of 1787
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
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
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.
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
"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:
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."
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.
- Examine the development of the
amendatory process of the United States
Constitution at the Federal Convention of 1787 in sequential order by
presentation of the actual text before the convention at that time in
at each stage in the development of the amendatory process which
political bodies were to have authority to amend the Constitution of
the United States and under what circumstances and conditions this
authority was to be executed;
the article "The Other Way to Amend the Constitution: The Article V
Constitutional Convention Amendment Process" (2007) written by James Kenneth
Rogers. This article is the most frequently used reference for "same subject" "closed" advocates.
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
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
Examination of the Rogers Arguments
The 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
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
decision. He also fails
to mention in 1978 Delaware became the 34th state to
submit an application on the subject of apportionment.
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.
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
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.