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Subjects Inside: Article V Applications  FAQ, Application Counts By Congress, Articles, AVC Legislative Report, CRS Reports, Convention of States, The Historic Record of COS, COS Laws, COS Articles, John Birch Society, Con-Con, Runaway Convention, Who Called the Convention, Congressional Vote on a "Runaway" Convention, "Obey the Constitution, Only Two More States", Rescissions, The Phony Burger Letter, The Madison Letter, Fotheringham Exchange, JBS Articles, Sibley Lawsuit, General Interest, Article V.org, Robert Natelson, History of Article V, Counting the Applications, The Numeric Count History, Congressional Decision of May 5, 1789, Development of Article V, The Committee of the Whole, The Committee of Detail, August 30, September 10, Committee of Style, September 15, Official  Government Documents, History of FOAVC, Founders, Audio/Visual, Links, Contact Us, Legal Page, 14th Amendment, The Electoral Process, Packets, Definitions, Numeric Counts of Applications, Same Subject Counts of Applications

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Page 5 A--COS, CFA--Which States are Which?

According to the latest legislative report, Convention of States has acquired the support of 12 states (Alabama, Alaska, Arizona, Georgia, Florida, Indiana, Louisiana, Missouri, North Dakota, Oklahoma. Tennessee and Texas) in the form of applications for a "convention of states." Compact for America has gathered the support of five states (Alaska, Arizona, Georgia, Mississippi and North Dakota) in the form of passage of the "Compact for America." Both COS and CFA claim support of four states, Alaska, Arizona, Georgia and North Dakota. While COS and CFA may be lumped together for the purposes of discussion as their methodology for convention control are identical, politically and constitutionally (and thus legally) they are mutually exclusive.

COS uses the "traditional" amendment process of gathering "same subject" applications (despite the fact the Constitution has no such requirement); CFA uses an untested legal theory attempting to circumvent the Article V amendment process. Thus, politically, once a state "joins" COS or CFA it cannot "join" the other group. However the questions of legality and constitutionally also apply when determining which states support which organization. As a compact (a form of contract established for states in the Constitution) is involved it is possible once a state "joins" CFA, they are excluded from "joining" COS by the terms of the compact. Four states, Alaska, Arizona, Georgia and North Dakota have "joined" both CFA and COS. As the compact precludes joining COS as the political agenda for the two organizations are entirely different, the question arises as to whether these four states are part of the COS or CFA tabulation of states.

Neither COS nor CFA have made any public effort to clarify this issue. However, until the matter is resolved the reported number of
states supporting either COS and CFA is dubious. As a compact under the terms of the Constitution is a form of binding contract on the state thus superseding any resolution or legislative act to the contrary, it is likely those states joining the CFA compact, assuming the compact is constitutional which is dubious, must be counted as CFA, rather than COS, states. Thus the states of Alaska, Arizona, Georgia and North Dakota must be placed in the CFA column making the count of states eight states in the COS column and five states in the CFA column.

However the matter does not end there. There appears to be no consistent policy regarding what is, and what is not, a "convention of states" application. Convention of States Project has claimed some state applications as "convention of states" applications but has failed to acknowlege other state applications as "convention of states" applications. The question is: what is the policy which determines what is, and what is not, a "convention of states" application?  The specific issues surrounding several state applications are discussed below.

The Alaska Application

In many cases COS has claimed applications which, while the state may use the term, "convention of states" somewhere in the application, is, in fact a "standard" Article V Convention application. In the case of the Alaska "COS" application, for example, the term "convention of states" is used in the opening paragraph, but the application requested subject matter (nullification of federal laws, regulations and court orders) not in the COS political agenda. It would appear then if the phrase "convention of states" is used in the application, the application is a "convention of states" application. However, other examples of state applications and claims by Convention of States refute this thus making a determination of what is, and what is not, a "convention of states" application dubious at best.

The Florida Application

In the case of the Florida application, while the application matches the political goals stated by COS, no where does the term "convention of states" appear in the application. This raises a question of validity of the claim  by COS that 12 states have applied for a "convention of states." Have the states actually applied in support of the COS political agenda and thus this makes it a "convention of states" application or is COS simply claiming any application using the term "convention of states" as its own (regardless of application content and intent) in order to further its own political agenda? The answer appears to be both and neither.

The Arizona Application

O
n March 14, 2017 the state of Arizona passed House Concurrent Resolution 2010 "applying to the Congress of the United States to call a convention for proposing amendments to the Constitution of the United States." Because the resolution used the term "convention of states" in passing in the text of the resolution, COS immediately claimed it as one of their own. Yet the title of the application clearly describes a "convention for proposing amendments" rather than a "convention of states." It is the strict policy of FOAVC not to publish any application until it is officially received and recorded by Congress. Therefore the text of the application will not appear on our list of applications until it is recorded in the Congressional Record. Moreover the record available at the Arizona State Legislature website while noted to be "engrossed" fails to show any official signatures proving the text as shown is actually an official state document. This stated however, as FOAVC has raised the point regarding the text of the application and our policy is to provide evidence for our statements we are publishing the text of the application from the Arizona Legislature.

Other "Convention of States" Applications not acknowledged by Convention of States

As we have stated before "COS has failed to acknowledge an already submitted application by a state using the term "convention of states" in the text of the application and which politically reflects the COS agenda in the text of application in its "count" of COS applications. Applications submitted by the states of South Carolina, Wyoming and Michigan have not been recognized by Convention of States as "convention of states" applications yet all contain the term "convention of states" or reflect the political agend of the group, Convention of States. As discussed above COS has claimed state applications as "Convention of States" applications in which either of these two conditions were satisifed or in which one of the two conditions were satisfied. Yet in these three cases COS has not claimed them as "Convention of States" applications despite the fact at least one of the two conditions apparently required to be consider a "Convention of States" application has been satisifed. Therefore there appears to be no consistency in how a state application is judged to be a "convention of states" application. The South Carolina application may be read here and here. The Wyoming application  may be read here. The Michigan application may be read here.

The Texas and Missouri Applications

Meanwhile, COS claimed a Texas application which doesn't contain the phrase "convention of states" in its text, as a "convention of states" application but does reflect the political agenda of the group Convention of States. An application by the state of Missouriwas claimed by COS as a "convention of states" application. The Missouri application contains the phrase "convention of states" as well as the political agenda of the Convention of States Project.

Conclusion Regarding Convention of States Applications

The only conclusion possible, based on the record of state applications and response by the Convention of States Project is COS cherry picks which state applications are "convention of states" applications and which state applications are not "convention of states" applications. The basis of the choice appears to be political, rather than constitutional.
The Convention of States Project apparently has no consistent policy describing what is, and what is not a "convention of states" application. Thus, any "count" of state applications purporting to be "convention of states" applications is entirely arbitrary and unreliable.

The COS Applications and the question of an "open" or "closed" convention

The political organization Convention of States advocates a particular political agenda. COS steadfastly states the convention will be strictly limited to proposing that particular political agenda. This is generally referred to as a "closed" convention (See: Page 11 A; Page 11 D). However, if a "convention of the states" can incorporate any state application which happens to use the term "convention of states" regardless of political subject within the application that will be considered at a "convention of states" convention then clearly the "limited" convention proposed by the political group Convention of States cannot be true.

The "convention of states" would then be an "open" convention meaning all applications ever submitted by the states would appear on the convention agenda. The only difference then between a convention for proposing amendments (the term used in Article V) and "convention of states" is a different title. The term "convention of states" then becomes meaningless having no actual affect on the powers of an Article V Convention (convention for proposing amendments) to propose whatever amendments the delegates determine.

Delegate Section and Convention Agenda

242601 However the convention is construed, the more important issue therefore is delegate selection and agenda review. In their well funded campaign whose statements are apparently accepted without question by supporter and opponent alike just like JBS/Eagle Forum statements (See: Page 6) at no time does COS/CFA ever mention the American people are excluded entirely from the convention process. The people have no part in delegate selection or in review of convention agenda. Enacted state laws remove their right of "alter or abolish" described in the Declaration of Independence (See: Page 5 B). Several states have enacted COS laws which forbid electoral participation of the people in the amendment process. Such laws appear to be in conflict with already existing federal criminal laws which prohibit removal of the right to vote (18 U.S.C. 242) as well a criminal law (18 U.S.C. 601) specifying convention delegates shall be elected (See images left, click to enlarge).

A COS/CFA convention denies the people their right to vote directly on the matters of a convention and there is no guarantee by COS/CFA this right to vote will exist after a COS/CFA convention. As the 14th Amendment (See Page 18) requires equal protection under the law (See: Page 17 E) it is reasonable (and constitutional) to postulate all political bodies involved in the amendment process (Congress, state legislatures) who are inclined to extend power for themselves at the expense of the fundamental principles of this nation may take advantage of this removal of vote by the people.

Thus these groups may extend the prohibition of voting to include themselves. This would mean the American people would have no say as to how long a member remained in power. It would mean the American people would have no say regarding actions by the legislature or Congress. This removal can be accomplished, not by the passage of an amendment, but by legislation. Article I of the Constitution specifies the qualification for electors choosing senators and representatives for Congress is the same as for the upper house of a state legislature. A change in qualification for elector at the state level in the upper house of a state legislature automatically affects qualification for election of Congress.


This issue of equal protection raises another problem. COS/CFA have both publicly favored the one state/one vote principle meaning state delegates are gathered into state delegations which then vote as a collective group with each state delegation having one vote. (See: COS Proposed Rules, Rule 4; CFA Compact, Article VII, Section 4). As the states are equal according to COS/CFA and the Constitution, the question of equal redress arises. The states are equal because the citizens comprising those states are equal. This includes the right of redress guaranteed the citizen in the First Amendment and thus guaranteed the state which is comprised of those citizens.

The states have submitted numerous issues in applications for an Article V Convention outside of those itemized by COS/CFA. If the states are equal as COS/CFA recognizes, how can equal redress for the presentation of issues at a convention be denied such that only certain issues are permitted and thus countless state applications on other issues denied? FOAVC believes under the terms of the First and 14th amendments denial of equal right of redress by the states is unconstitutional (See: Page_18).


COS--The Historic Record

While COS may believe a Convention of States originated from them and the political theory that a convention for proposing amendments is regulated by the states, such belief is misplaced. The notion that the states control the amendatory process of a convention based on the sovereignty of the various states was discussed in the early 1800's. Ultimately the question of which sovereignty, state or popular sovereignty (sovereign authority originated from the people) was supreme was resolved in McCulloch v Maryland, 17 U.S. 316 (1819).

Chief Justice Marshall in a unanimous Court ruling declared, "The Government of the Union then is emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." This declaration came about as the "counsel for the State of Maryland...deemed it of some importances, in the construction of the Constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States."


Marshall

Please click Chief Justice Marshall's picture to read that portion of McCulloch which addresses state vs popular sovereignty.

In 1833, the state of South Carolina requested a "convention of states" for the purpose of consideration of an amendment to the Constitution. The state of Delaware responded and stating no such form of government existed in the Constitution. You can click on the state maps below to read the application request by the state of South Carolina (2 pages) and the response by the state of Delaware.

Carolina
Carolina
Delaware

South Carolina page 1
South Carolina page 2
Delaware

 

CFA: A Lack of Historic Record

There is no corresponding historic record for CFA as exists for COS. No one in the history of the United States has ever suggested that in order to amend the Constitution of the United States anything other than the amendment process of Article V be used.  This does not mean the Supreme Court has not addressed the issue of using some other process other than that specified in Article V of the Constitution to amend the Constitution. In sum, the Court has emphatically stated that no such process is permitted. Therefore any such process is unconstitutional. In United States v Sprague, 282 US 716 (1931) the Court stated:
 
"The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses; or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them. ... The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition."  [To read a full discussion on Sprague you may go to Discussion: Page 17 K].

Unquestionably a legal theory (never attempted in the history of the nation) employing the Compact Clause of the Constitution  to accomplish an amendment to the Constitution requires rules of construction, interpolation and addition in order to create this new method of constitutional amendment within or adjunct to Article V. Therefore it is doubtful the CFA Compact meets the constitutional standard of Sprague of no rules of construction, interpolation or addition.

Other Constitutional Issues facing CFA

CFA faces several constitutional obstacles. In Virginia v Tennessee, 148 U.S. 503. 519 (1893) a seminal decision by the Supreme Court on state compacts, the Court said, "Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evidence that the prohibition [approval by Congress] is directed to the formation of any combination tending to increase the political power in the states, which may encroach upon or interfere with the just supremacy of the United States." Obviously the creation of a new amendment process allowing the states to bypass the traditional super majorities required in Article V will tend to "increase the political power in the states." Equally such new power brings into question the supremacy of the United States as a provision never before intended to amend the Constitution is used to do exactly that. Thus Congress will have to approve the compact. CFA admits this fact to be true.

The fact Congress has to approve the CFA compact raises another constitutional issue. As Congress must use its legislative rather than amendatory powers to approve a compact, by a simple majority vote in each house of both the compact itself (which Congress may alter) and any enabling legislation adjacent to it (such as the convention call and a predetermined vote on the mode of ratification as required by the CFA compact). As approval is made under the legislative authority of Congress, it is subject to veto by the President of the United States. In its FAQ page (page 19) CFA states "The text of the Compact Clause (Article I, Section 10, of the U.S. Constitution articulates no role for the President in granting consent to interstate compacts, and no case actually holds that congressional consent to an interstate compact requires presidential approval."

CFA is incorrect. Contrary to CFA statement, there are cases of presidential veto of a compact as discussed by Wells A. Hutchins J.D. in his book "Water Rights Laws in the Nineteen States" (2004). As Mr. Hutchins discusses on page 82, state water rights are frequently the subject of  interstate compacts. Moreover, while it is true Article I, Section 10 does not "articulate" a role for the President in granting consent to interstate compacts, Article I, Section 7 does:

"Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it,...Every order, resolution, or vote to which the concurrence of the Senate and House of Representative may be necessary (except on a question of adjournment) shall be presented to the President of the United States, and before the same shall take effect, shall be approved by him,..."

   

CFA maintains that the compact, once consented to by Congress, binds Congress with no further recourse on the part of Congress. The Supreme Court, in citing an amendatory example, disagrees stating in Pennsylvania v Wheeling and Belmont Bridge Company, 59 US 421, 433 (1855), "The question here is whether or not the compact can operate as a restriction upon the power of Congress under the Constitution to regulate commerce among the several states. Clearly not. Otherwise Congress and two states would possess the power to modify and alter the Constitution itself." The Court therefore makes it clear a compact cannot restrict Congress as to subsequent federal legislation which modifies the compact consent or enabling legislation.Therefore the amendment compact will not be perpetual as CFA states nor immune from alteration by Congress as both consent and  enabling legislature are subject to future congressional review. In short, Congress controls the compact, not the states as CFA believes.

The Court has also made it clear in the recent 1999 decision College Savings Bank v Florida Prepaid Postsecondary Education Expense Board, 527 US 666, 684 (1999), that before the states undertake to create a compact, they must obtain permission from Congress. CFA has not done this. The Court stated, "Under the Compact Clause, U.S. Const., Art. I, Section 10 , cl. 3, States cannot form an interstate compact without first obtaining the express consent of Congress." [Emphasis in original].

Thus, according to the latest ruling by the Supreme Court on state compacts CFA appears to have put the constitutional cart ahead of the horse by attempting to create a compact among the states before obtaining "express consent of Congress" to do so. This Court opinion raises the question whether any of the four state compact votes are constitutional as they were achieved prior to CFA to receiving "express" consent by Congress to form the CFA compact but after the College Savings Bank ruling by the Supreme Court mandating that CFA receive "express" consent by Congress to form such a compact.


Another problem faces CFA. If, instead of using its legislative power of majority votes in both houses, Congress used its amendatory powers to circumvent presidential veto and approve the compact, it would not suffer presidential review. CFA correctly states in its FAQ, page 19, "Moreover, the President has no role in the Article V process, which confers power exclusively upon state legislatures, conventions of the states, in-state conventions, and Congress. CFA cites Hollingsworth v Virginia, 3 US 378 (1798) in which Justice Chase states in a footnote:

"There can, surely, be no necessity to answer that argument [that an amendment proposed by Congress is required to have the consent of the president]. The negative of the President applies only to the ordinary cases of legislation: he has nothing to do with the proposition, or adoption, of amendments to the Constitution." [See Discussion: Page 17 B].

The problem is CFA proposes amendment of the Constitution by means of another constitutional process other than Article V namely the Compact Clause. The prohibition on presidential participation of Article V does not apply to the Compact Clause. Expressed language in the Constitution requires a compact suffer presidential review. As a compact is a legislative act of the Congress requiring a vote by Congress the Constitution clearly states presidential participation shall occur.

Moreover, if Congress used its amendatory powers and proposed the "compact" by a vote of two thirds of each house, it would be Congress that proposed the amendment, not the compact or its member states. By such means therefore Congress would nullify the CFA compact altogether and simply be proposing the amendment by the traditional means provided in Article V. Such action, of course, defeats the compact. Therefore, if the CFA compact is to be at all viable it must be subject to presidential review. But the President "has nothing to do with the proposition, or adoption, of amendments to the Constitution."


As both propositions are true, that compact must suffer presidential review, but the president cannot review a proposed amendment to the Constitution, the CFA compact is between a constitutional rock and hard place. The solution is obvious: a compact cannot be used to propose an amendment to the Constitution as it subjects the proposed amendment within that compact to a potential presidential veto. Moreover, as a compact is required by the Constitution to be submitted for presidential review the compact cannot contain language which in any relates to the "proposition of an amendment."

Thus any compact which proposes to:
    (1) submit Article V applications for a convention to propose amendments;
    (2) creates a commission which organizes the convention to propose an amendment(s);
    (3) submits language containing the convention call used by Congress to convene a convention for proposing amendments organized by this commission;
    (4) regulates all convention delegates to the convention and presents a binding set of instructions relating to the actions of these delegates at this convention;
    (5) establishes the agenda of the convention for proposing an amendment(s) organized under the terms of the compact;
    (6) establishes the mode of ratification "chosen" by Congress for the amendment(s) proposed by the convention created by the compact and;
    (7) creates a pre determined ratification vote by the states for the amendment(s) proposed by the convention created by the compact,

is clearly involved in the "proposition of an amendment(s)." The CFA Compact contains language describing control of all these points. FOAVC believes the Constitution forbids the use of the Compact Clause for such purpose and therefore the CFA proposal is unconstitutional.


Continued to Page Five B
Page Last Updated: 22 MAY 2017