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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 6 A--Continuing The Discussion of JBS, Eagle Forum

Introduction

A persistent objection to an Article V Convention presented by JBS/Eagle Forum is an Article V Convention is some kind of constitutional "con" is being played on the American people. Rather than recognize the convention as a constitutional requirement, JBS/Eagle Forum insists the convention is a "bad idea." Their rhetoric implies this constitutional clause can be disregarded if desired.

JBS/Eagle Forum does not inform the public of the fact the states have long since satisfied the two thirds requirement of Article V. Thus a convention call is mandated. JBS/Eagle Forum have never presented any evidence proving the convention clause of Article V can be disregarded or vetoed. FOAVC believes the convention clause, like the rest of the Constitution, is not "bad idea" but a binding constitutional requirement. None of the Constitution may be disregarded or vetoed. Thus whether it is a "bad idea" is irrelevant as it is a constitutional mandate.


JBS/Eagle Forum says a present day Article V Convention will become a "runaway" convention, just like, they say, the Federal Convention of 1787 was. FOAVC will examine the premise in detail. Rather than quoting the correct constitutional language of "convention for proposing amendments" or more familiar "Article V Convention" to describe the convention amendment process of Article V, JBS/Eagle Forum instead refers to an Article V Convention as a "constitutional convention" or "con-con."

This "error" is part of a clever marketing technique intended to convey the subliminal message a "con-con" is a "con" on the American people. JBS bases their "title" on their interpretation of historic events which JBS/Eagle Forum believes occurred at the Federal Convention of 1787. JBS/Eagle Forum has never provided evidence proving these events will occur if an Article V Convention is called.


JBS/Eagle Forum freely use the term "constitutional convention" describing both the 1787 Convention and an Article V Convention. This notion was emphatically rejected by a formal vote of the Federal Convention of 1787. JBS/Eagle Forum freely apply the term "runaway" to both conventions. The two events are separated by at least two centuries and by two different forms of government. To avoid any confusion between reference to these two separate events throughout this part of the site, FOAVC will refer to the 1787 Convention as the Federal Convention of 1787, as used by Professor Max Farrand in his seminal work, "The Records of the Federal Convention of 1787." A reference to the convention required under the present Constitution will be termed as an "Article V Convention" or "amendments convention." The general word "convention" will always refer to the title reference of that sentence or paragraph.

"Constitutional Convention (Con-Con) and the "Runaway Convention

JBS states on its website:

"Article V of the Constitution is clear about the two ways to pass amendments. Also clear is what happened in 1787 when the Constitution was written. The convention to amend the Articles of Confederation wrote an entirely new Constitution, which was outside of its scope. Ratification rules were rewritten in order to ensure passage. Are we confident that the Constitution would not be rewritten and ratification rules not thrown out? The John Birch Society stands opposed to calling for a convention, but supports amending the Constitution through Congress. However, the better solution is to obey the Constitution to rein in the federal government, not amend a document that is ignored."

JBS/Eagle Forum therefore presume the following about an Article V Convention:

The Article V Convention described in the United States Constitution is identical to that of the Federal Convention of 1787 despite there being no language in the Articles of Confederation referring to a convention of any description nor any language in the Constitution referring to a "constitutional convention," the term JBS/Eagle Forum apply equally to describe both forms of conventions.

JBS/Eagle Forum believe the Federal Convention of 1787 was limited to only to "amend" the Articles of Confederation (meaning that when finished the Articles of Confederation would have remained as the ruling form of government in America) and not authorized to propose a new Constitution. While the Constitution refers to "amending" the Constitution, the Articles of Confederation refer to "alteration" of the document.

JBS/Eagle Forum believes the Federal Convention of 1787 instead wrote a new Constitution which it had no authority [scope] to do. Technically JBS/Eagle Forum accuse two future presidents of the United States (Madison and Washington) and numerous other historic figures of that period of insurrection against the Government of the United States in that these men willfully attempted to overthrow the legal form of government in place at the time (the Articles of Confederation) without due process of law and replace it with an unauthorized new form of government. There is no record of any person who participated in the Federal Convention of 1787 being charged with insurrection against the Government of the United States.

In writing an unauthorized Constitution JBS/Eagle Forum believe the Federal Convention of 1787 became a "runaway" convention. JBS/Eagle Forum coined the term "runaway" convention to describe unauthorized actions by a convention contrary to instructions given it either by Congress or the states. The term had never been in general use to describe the Federal Convention of 1787 until the start of the JBS/Eagle Forum anti-convention campaign.

JBS/Eagle Forum believes the Federal Convention of 1787 rewrote the ratification rules of the Articles of Confederation to ensure passage of the new Constitution.  This statement is incorrect. The Federal Convention of 1787 wrote a ratification rule for the proposed Constitution but made no mention of changing the ratification rule of the Articles of Confederation.

Article VII of the Constitution describes ratification for the Constitution. It is one sentence long: "The Ratification of the Conventions of nine states, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." Article 13 of the Articles of Confederation described the "alteration" process of the Articles of Confederation: "Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State."

As JBS/Eagle Forum believes the Federal Convention of 1787 exceeded its authority with the proposal of a new Constitution and ratification and was not authorized by Congress to do so, JBS/Eagle Forum believes the same thing will occur if Congress calls an Article V Convention. As will be discussed JBS/Eagle Forum never mentions the fact Congress considered the question of whether the convention exceeded its authority and was therefore a "runaway" on September 27, 1787. Congress officially determined the convention was not a "runaway."

JBS/Eagle Forum support amendment of the Constitution but only if such amendment is proposed by Congress. JBS/Eagle Forum ignore the fact Congress and an Article V Convention have identical amendment proposal powers. If, as JBS/Eagle Forum contends, "the Constitution can be rewritten and ratification rules ... thrown out" by a "constitutional convention," and Congress has the identical authority under Article V, JBS/Eagle Forum has never explained how Article V prevents Congress from becoming a "runaway" Congress but allows an Article V Convention to be a "runaway" convention.


JBS/Eagle Forum believe the federal government ignores the Constitution and by doing so exceeds the authority granted it by the Constitution with the creation of excessive rules (regulations), laws and court rulings which interfere with the daily lives of Americans.  Other than not calling an Article V Convention when required to do so, there is no record the United State Government (not an individual within that government) has ever violated a single provision of the United States Constitution. The question of violation of the Constitution by the government is not whether regulations, laws or court rulings politically unfavored by some should exist. When discussing violation of the United States Constitution by the government, the question is whether such regulations, laws and rulings can exist under the terms of the Constitution.

JBS/Eagle Forum has never presented any evidence proving the United States Government regulations, laws or court rulings it politically opposes cannot exist under one or more provisions of the United States Constitution. JBS/Eagle Forum have presented no evidence the United State Government has ignored the Constitution in the creation of these regulations, laws and court rulings. Instead the evidence appears to prove the government has made constitutionally based decisions which politically JBS/Eagle Forum oppose but which the groups have no evidence proving are unconstitutional. 

JBS/Eagle Forum believe the solution to our national problems "is to obey the Constitution to rein in the federal government." In direct contrast to its "support the Constitution as is" theme JBS/Eagle Forum oppose calling an Article V Convention when Article V clearly mandates Congress is peremptorily required to do so. This dichotomy is only explained if it is accepted JBS/Eagle Forum believe the Government can veto the Constitution when JBS/Eagle Forum politically agree with that decision. JBS/Eagle Forum have never explained how by having the federal government veto the Constitution this will further its solution of the government "obeying the Constitution."

As JBS/Eagle Forum intertwine "runaway" convention and a "constitutional convention" these two JBS/Eagle Forum concepts will be discussed jointly. Any examination of whether the Federal Convention of 1787 was a "runaway" and what authority it possessed must begin by examination of the convention call issued by Congress on February 21, 1787. As shown below in photographic copies of Journals of Congress, the official record of the Congress during the Articles of Confederation, the first resolution proposed by New York on February 21, 1787 was defeated. The second, proposed by the state of Massachusetts, was enacted by Congress and specified the authority of the Federal Convention of 1787.

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JBS/Eagle Forum incorrectly uses the word "amend" to describe the congressional authorization for the Federal Convention of 1787. The convention call of February 21, 1787 did not state the Federal Convention of 1787 was authorized to "amend" the Articles of Confederation nor did it use the word "alteration" [a form of the word "alter] which is the word used in the Articles of Confederation. Instead Congress specifically used the word "revising" (a form of the word "revise") in its February 21, 1787 convention call. Congress required the "alterations and provisions therein" [recommendations of the convention] (plural) to render the "federal Constitution adequate to the exigencies of Government" be sent to Congress.

A brief discussion of the definitions of the words "agree" "alter", "amend" and "revise" can be read on our Definitions page. In sum, the word "revise" demonstrates congressional consent in allowing the convention whatever latitude required in order to "render the federal Constitution adequate to the exigencies of Government." As discussed further on our Definitions page, the word "revise" implies a comprehensive overhaul of whatever is being "revised." Congress understood the meaning of this word.

As such Congress reasonably understood such "revision" might include an entire new version of the Articles of Confederation in order to redress the multiple problems of government which existed under the current Articles of Confederation. In other words for the convention to accomplish the task assigned it ("render the Constitution adequate to the exigencies of Government") Congress understood this might require massive changes in the Articles of Confederation.


The requirement the Federal Convention of 1787 present their recommendations ("alterations and provisions") to Congress was in respect to the requirements of the Articles of Confederation. The Articles mandated any "alteration" to the Articles be first "agreed" to by Congress then ratified by all 13 states. The language of the February 21, 1787 call made it abundantly clear more than one "alteration" was expected from the convention. This fact was the primary motivation for the convention writing a new Constitution--that each proposed alteration in the language of the Articles of Confederation required unanimous consent from all 13 states to take effect.

The problem was the state of Rhode Island which consistently refused to consider any changes whatsoever to the Articles of Confederation and rarely sent representatives to Congress. These two political tactics essentially allowed Rhode Island to hold the rest of the nation political hostage unable to redress national problems as they occurred. The prospect of a Rhode Island veto on any proposal(s) the Federal Convention of 1787 might advance was clearly on the convention delegates' minds as shown through numerous references in the records of the Federal Convention of 1787.

00940090An example of this thinking can be read by clicking the page image beside this paragraph taken from Farrand's "Records of the Federal Convention of 1787 (Volume II, page 90). By the time of this example (Monday, July 23, 1787) the decision to propose a new "system" of government--the Constitution--had long since been made by the delegates. All recommendations were therefore placed in a single political basket. This decision had the advantage of satisfying the terms of the Articles of Confederation which only permitted  a single "alteration" (rather than "alterations") "at any time" to the Articles ["nor shall any alteration at any time hereafter be made in any of them [the Articles]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures in every State."] Thus, "at any time" only one "alteration" could be proposed to the Articles.

By creating a single constitution, the Federal Convention of 1787 presented one proposal requiring one ratification vote and resulting in one alteration to the Articles of Confederation, all to counter the expected veto by Rhode Island. The state could have easily raised the single factor limitation ("any alteration instead of alterations") and thus defeated all but one proposal by asserting the Articles only allowed for "an alteration at any time" had they been introduced separately but simultaneously by the convention.
Learning from this mistake the Founders carefully avoided this grammatical trap and allowed for proposal of "amendments" rather than "amendment" in Article V with no time factor described.

Because of the change in language Congress was able to propose the Bill of Rights--12 amendment proposals--simultaneously under the Constitution. The 12 proposals still required individual ratification by the states. This fact of constitutional law demonstrates irrefutably while both proposal bodies under the Constitution have authority to propose multiple amendments simultaneously (thus addressing multiple issues not necessarily related to one another as was the case with the Bill of Rights) each proposal is considered separately in ratification. The fact Congress proposed 12 amendments was irrelevant until the states ratified ten of the proposed amendments (and much later an eleventh). The political climate of that time required multiple amendments; whether it will occur again either through Congress or a convention will be determined by the people. JBS/Eagle Forum have never asserted that Congress, in proposing the Bill of Rights became a "runaway" Congress. 

Examination of the text of Articles of Confederation preclude the JBS/Eagle Forum statement the Federal Convention of 1787 had authority to "amend" the Articles of Confederation. Under the terms of the Articles the Federal Convention of 1787 had no authority to do anything except make a non-binding recommendation for "revising" the Articles of Confederation. The Articles clearly state Congress was required to "agree" to any proposal and then the proposal was forwarded to the states for consideration. The public record clearly demonstrates ultimately Congress "agreed" to the recommendations of the Federal Convention of 1787. Thus, Congress and the states had the power to "amend" the Articles, not the convention.

If Congress "disagreed" with a proposed "alteration" it would not be forwarded to the states for consideration. The Articles made no exception for a convention to take the place of Congress and propose an "alteration" to the Articles. There is no mention of authority to bypass Congress and submit their proposal directly to the states. While the convention may have written the proposal, under the law in effect at that time, Congress, not the Federal Convention of 1787, proposed the Constitution (including its ratification process) to the states for their consideration by "agreeing" to it. As discussed later, this fact was clearly understood by the members of Congress.

Click to enlargeClick to enlargeThe word "agree" has several meanings only one of which is to "have the same opinion about something; concur." You can also "agree" to "something that has been suggested by another." Congress took advantage of this fact. Congress "agreed" to recommend the proposal by the Federal Convention of 1787. Ultimately Congress "agreed" the Articles of Confederation could be "revised" as proposed by the Federal Convention of 1787 but specified the decision to do this was to be by vote of the people in representative conventions. (See images at left of one of the motions (ultimately rejected) made on September 27, 1787 regarding the proposal). Thus the Articles were to be  abandoned (assuming approval by the people), even though several sections of the Articles were copied into the new Constitution (as well as direct reference to debt under the Articles being transferred to the new government), and replaced with a new form of national government which Congress believed (by transmitting the proposal to the states for consideration) would "render the federal Constitution adequate to the exigencies of Government and preservation of the Union." 

01670549In the message sent to the states on September 28, 1787 Congress unanimously acceded to the ratification request by the convention and submitted the proposal to the states requiring the proposal be considered by elected conventions. (See image left, click to enlarge). While JBS/Eagle Forum characterizes this as proving the convention was a "runaway," public record proves them wrong. Article XIII of the Articles of Confederation states, "Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them." The question of whether to forward the Constitution to the states for consideration and under what circumstance and conditions this was to be done, was, under the terms of the Articles, entirely controlled by Congress.

Congress therefore was completely within its rights bestowed it by the Articles of Confederation when it "agreed" to forward the proposed constitution to the states for ratification by elected conventions as requested by the Federal Convention of 1787. Acting in compliance with this binding determination by Congress given it by the Articles (not the Constitution), all state legislatures drafted laws creating ratification conventions, held public elections, and used public funds to pay for convention expenses. Finally, all state legislatures voted to accept the convention vote as their own. They thus reported favorably back to Congress as a vote of that state.

In this manner both the conventions and the state legislatures voted in favor of the proposed "alteration" to the Articles of Confederation. This satisfied not only the terms of the Constitution but the Articles of Confederation as well. The proposed Constitution was ratified twice; once under the terms of the Constitution and once under the terms of the Articles of Confederation. In all respects therefore, according to public record, the Constitution was properly ratified and the Articles properly altered.


Continued to Page 6 B

Page Last Updated: 9-APRIL 2017