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Subjects Inside: Article V Applications  FAQ, Application Counts By Congress, Articles, AVC Legislative Report, Convention of States, The Historic Record of COS, COS Laws, COS Articles, John Birch Society, Con-Con, 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

Go To Page 6: A, B, CE, F, G  Return to Page 6

Page 6 D--Continuing The Discussion of JBS, Eagle Forum

Rescissions

Introduction

A central theory of the JBS/Eagle Forum anti-convention campaign is state legislatures can "rescind" previously submitted applications for an Article V Convention (see 2015 JBS/Eagle Forum article). The political benefits of this theory to the JBS/Eagle Forum campaign are obvious. By "rescinding" applications, JBS/Eagle Forum prevents a convention from being called which is their stated political goal.

The theory of "rescission" is so central to the JBS/Eagle Forum campaign that if this linchpin were pulled the campaign would effectively end. JBS/Eagle Forum has never presented any other "tool" JBS/Eagle Forum believe can prevent the calling of an Article V Convention. FOAVC believes a through examination of the theory of "rescission" of applications for an Article V Convention call is clearly warranted as it presents several ramifications both legally and constitutionally.

A leader in JBS/Eagle Forum, who was responsible for the anti-convention campaign has admitted "rescissions" have no legal affect or effect whatsoever.

Any discussion of so-called "rescissions" begins with the fact the public record proves before any "rescission" was submitted by the states, (1951, state of Maine), the states had submitted sufficient applications to cause two convention calls. The language of Article V is explicit: a convention call is "peremptory" meaning Congress has "no option." Therefore the applications take precedent.

More importantly, JBS/Eagle Forum have never explained as an Article V Convention is a "Convention of The People" (See Page 11 J) and not a "Convention of the States" how state legislatures have any authority to prevent the people from exercising their right of "alter or abolish."

According to the theory of JBS/Eagle Forum, state legislatures have the right to "rescind" or "nullify" their application, that is, declare the application "null and void" at any time of their choosing after submitting the application to Congress for an Article V Convention call. They accomplish this with the issuance of a new "application" announcing to Congress that previous application(s) have been rescinded. No "rescission" has ever contained instructions to Congress as to what is expected of Congress in light of the "rescission." No "rescission" has ever expressed that Congress, by the authority of the state legislature issuing the "rescission" is required to obey that "rescission."

However the implication is clear: in some fashion Congress is required to obey the "rescission" instead of the peremptory language of Article V and remove the previous application(s) from the public record or otherwise ignore the application(s) that has been "rescinded." Thus, in some fashion, the "rescission" instructs Congress to deliberately disobey the Constitution.  No "rescission" has ever presented or referenced any court ruling or state law which asserts any legal affect or effect on previous applications or that binds Congress to the determination of "rescission" announced by the state legislature.

There is no record of discussion in the Federal Convention of 1787 regarding states having the right to rescind federal record. There is no record of the convention giving any power to the states (other than not submitting an application in the first place) intended to prevent the congressional obligation to call a convention when mandated by Article V applications. Article V contains no language allowing state legislatures to "rescind" applications. The Supreme Court has made it clear no implied language exists in Article V indicating that unless textually present, no such state authority exists. (See Discussion Page 17 K).


JBS/Eagle Forum has never presented legal evidence to prove even if "rescissions" exist they are controlled by the state legislatures. In other words JBS/Eagle Forum has never answered the question of whether Congress, once granted the power of "rescission" of state applications, is limited only to "rescinding" those applications that the states command or has acquired a new amendatory power which can be extended to all applications. The Supreme Court has stated in all aspects Congress controls of the amendatory process. On its face, this ruling supports Congress deciding the issues of "rescissions" not the states. However the Court also made it clear its determination was "advisory" and that Congress must obey the Constitution. The Constitution does not recognize the right of states to rescind federal public record (See: Discussion Page 17 M).

According to procedure established in 1789 all state applications are recorded in the Congressional Record, and therefore are the property of Congress. The applications are placed in the federal archives as a federal public record. In all circumstances, according to their theory, "rescinding" an application means Congress is required to remove the application from the public record thus preventing the rescinded application from "counting" toward an Article V Convention call. 

Despite their belief state legislatures can "rescind" applications for an Article V Convention, JBS/Eagle Forum have never sought a court ruling affirming the authority of states to "rescind" or "nullify" federal public record. While some states have asserted a right to "nullify" federal law within their state boarders (which the Supreme Court has repeatedly declared unconstitutional) no state has ever enacted a law asserting authority to "rescind" or "nullify" a federal record in the possession of the federal government regardless of description.

JBS/Eagle Forum has never provided historic record proving states possess authority to "rescind" federal records. No text of the Constitution gives states authority to "rescind" a federal record of any description. Indeed the specific text of the Constitution directly supports the autonomy of federal records from state encroachment. Supreme Court rulings therefore do not support the theory of "rescission." The Court has ruled emphatically when states operate in amendatory process of the Constitution, they operate under the federal Constitution not state constitutions (See: Page 17 G).


In United States v Sprague, 282 U.S. 716 at 730,731 (1931), the Supreme 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 sum, the Supreme Court has stated the amendment process of Article V is strictly overt and contains no implications nor additions; unless the text expresses it, there is no constitutional authorization for addition (such as "rescission" or any other excuse concocted by convention opponents intended to prevent a convention call). (See: Discussion Page 17 K).

Despite these so-called "rescissions" public record shows Congress has never removed a single application from the federal public record. It is a federal criminal offense to unlawfully remove any record from the federal public record. Congress has never enacted any legislation allowing it to "rescind" any application for a convention call. More importantly as "rescission" clearly requires federal legislation enabling Congress  to rescind applications, the authority to "rescind" applications (if it exists) rests with Congress, not the states (unless by amendment the terms of the Tenth Amendment are overturned). The "authority" of states to "rescind" applications therefore appears not rest on legal case law or historic record but entirely on the credibility of JBS/Eagle Forum's "clear" view of the Constitution.

Argument Against Rescission

As already summarized no legal evidence exists supporting the JBS/Eagle Forum theory of "rescission" or "nullification" of federal public record. No court rulings, federal or state laws, or constitutional text supporting the purported JBS/Eagle Forum "right" of states to "rescind" state applications for an Article V Convention call has ever been presented by JBS/Eagle Forum. Therefore a "rescission" is what is known as a "legal fiction" that is, it has no basis in law.

The text of the Constitution clearly provides the records of Congress are assigned to Congress, not the states. Article I, Section 5 requires, "Each House shall keep a journal of its proceedings, and from time to time publish the same...,"

The Tenth Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and to the people." Combined, this means the "authority" to keep a journal of congressional proceedings is textually assigned to Congress and, under the terms of the Tenth Amendment, denied to the states. The decision as to what is entered in the journal (and removed from it) is entirely controlled by Congress. States have no authority to alter that record in any manner including ordering "rescission" of any part of that federal record.

1001State applications are recorded in the Congressional Record. Congress archives the applications as a federal public record. As specified by the Constitution and federal law this public record is regulated by Congress, not the states. Removal of federal public record is strictly prohibited by two federal criminal laws. The first, 18 USC 1001 (shown left, click to enlarge) makes it a crime to "make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry..." Without legal evidence, beginning with a provision in the Constitution or a federal court ruling making "rescissions" legally binding on Congress, their "legal affect" is a fiction and therefore materially false.

371As Congress has and is now counting the states applications 18 USC 1001 applies. The law has effect however only if Congress "rescinds" state applications and does not "count" the application previously submitted by a state based on that "rescission." As the "rescission" is a "legal fiction" and is "materially false" refusing to "count" an application based on this "fiction" is a felony. Additionally, under federal law, members of state legislators who passed the "rescissions" and JBS/Eagle Forum members advocating illegal removal of federal public record face possible criminal conspiracy charges. (See 18 USC 371 shown right, click to enlarge). This law makes it a criminal offense for two or more persons to commit any offense against the United States "in any manner or for any purpose" (such as conspiring to prevent a convention call when otherwise mandated by use of fictional documentation).

Obviously passage of resolutions in state legislatures based on a fictional legal theory created by JBS/Eagle Forum qualifies under the "any act to effect the object of the conspiracy" provision of the law.
In any legal action the burden of proof would fall on JBS/Eagle (or the state legislators) to prove a "rescission" or "nullification" of applications is a legally binding state power over Congress. JBS/Eagle Forum has never produced a single piece of evidence supporting the legality of so-called "rescissions." Indeed JBS/Eagle never even considered whether so-called "rescissions" were legal (See: Fotheringham Exchange Page Six F).

2071 This is not the only federal law effecting federal public record dealing with so-called "rescissions." 18 USC 2071 (shown left, click to enlarge) forbids the "willful or unlawful" removal of any public record "filed or deposited...in any public office, or with any ... public officer of the United States"  A state application sent to Congress by a state legislature is an official act of government with appropriate state seal and official state signatures. All applications state they are to be filed with Congress. The applications are officially noted in the Congressional Record. There is no question therefore state applications are "filed or deposited" with a public office (Congress). Therefore under terms of 18 USC 2071 unless it is "lawful" a public record may not be removed from the records of the United States Congress.

Congress has never enacted legislation making removal of applications as directed by the state legislatures "lawful."
18 USC 2071 is particularly stringent on members of Congress. Should any member violate that law by unlawfully removing a record of application, the law requires they shall be sentenced to three years in federal prison, forfeit their office and be disqualified from holding any office under the United States in the future. The fact no state application has ever been removed by Congress as a result of a purported "rescission" is clear evidence such removal is "unlawful." If this were not so, removal from the public record would be a matter of routine and probably be performed by the clerical staff of the two houses of Congress.

Between the two federal criminal laws there is no wiggle room. 18 USC 1001 makes it a federal crime to "falsify, conceal or cover up by any trick, scheme or device a material fact or to make any "materially false, fictitious or fraudulent statement or representation." For example, asserting an insufficient count of application based on the " legal fiction" of rescissions exist when material fact proves sufficient applications exist to cause a convention call. 18 USC 2071 makes it a crime to "falsify" a record of the federal government i.e., stating an application is "rescinded" when no legal basis for such state authority exists meaning the application, in fact and in law, cannot be "rescinded."

In order for applications to be removed lawfully from the public record means Congress must enact legislation allowing Congress to do this. No such legislation exists. If such a law did exist, it would be a federal law and hence a federal power, not a state power.  There is no record of JBS/Eagle Forum or any state submitting so-called "rescissions" requesting Congress enact such legislation. Thus, any so-called "rescissions" are "unlawful."

Moreover under such a law the terms and conditions of lawful removal of applications would be established by Congress. Therefore the power to "rescind", which cannot exist except by the passage of federal legislation, would be a power of Congress not the states. The JBS/Eagle Forum assertion that "rescission" is a state power is proved false by the requirements of federal criminal law. In order for "rescission" to exist, if it can exist, it must be a federal, not state, power.


However creation of such federal power is not possible. As already discussed, the Supreme Court has ruled there are no rules of construction in Article V. In the same ruling the court stated emphatically if the states apply, Congress must call. The Court made no exceptions to its statement; indeed as noted, it was the United States which asserted Article V was "clear in statement and in meaning." Article V does not allow for "rescission" of applications either by Congress or by the states.

The requirement, as described by Alexander Hamilton in Federalist 85 is "peremptory" meaning, as Hamilton explains, "Congress has no option." 
Allowing Congress the option of "rescission" is clearly not permitted. (See Page 11 B). Moreover as such "rescission" would require deliberation by Congress to accomplish with the object of refusing to call when if not acted upon a convention call would be mandated, such action is clear violation of Article V as stated in Congress in May, 1787 (See: Page 11 C).

There is no constitutional basis on which Congress may enact legislation enabling it to rescind any application. This laws would permit Congress the ability to avoid calling a convention when it would otherwise be required to do so. This fact also means the states cannot limit a convention to a single topic of discussion (thus restricting a convention call to a time when sufficient applications on that particular subject exist), or place time limits on the effect of an application. In each case such a provision defeats the "peremptory" requirement of Article V giving Congress the ability to refuse to call when otherwise required to do so.

Thus any terms, conditions or circumstances in an application other than requesting Congress call a convention are null and void because they violate the "peremptory" principle expressed in the Constitution of "Congress...shall call a convention..." In sum, the "peremptory" ruling means Congress is only concerned with how many states submit applications; the contents of the applications are reserved for a convention to address.


A second obstacle to creation of a federal law rescinding applications is the Hollingsworth doctrine. This doctrine refers to a Supreme Court ruling, Hollingsworth v Virginia, 3 U.S. 378 (1798). In that ruling the Court determined the President "has nothing to do with the proposition, or adoption, of amendments to the Constitution" and that his "negative" [veto] "applies only to the ordinary cases of legislation." Without question, legislation granting Congress authority to "rescind" applications (based on a "legal fiction") such that an entire provision of amendatory process may be thwarted (and thus proposal of amendments defeated) clearly has "to do with the proposition...of amendments to the Constitution." Therefore the Hollingsworth doctrine prevents enactment of the necessary legislation required to lawfully permit "rescissions" of states applications. (See: Discussion: Page 17 B).

Finally Article V grants no state authority over another state's application. The public record shows the states have submitted 11 sets of applications each consisting of the necessary two thirds applications. Several of these sets were submitted to Congress prior to the start of the 1983 JBS/Eagle Forum campaign. Thus, before JBS/Eagle Forum asserted states could "rescind" applications, the applications already submitted required Congress call several conventions. As the call is "peremptory" meaning Congress has no option, so too is the requirement of "peremptory" on the states, meaning they have also no option. Thus the states can take no action which presents Congress "an option" not to call a convention where otherwise it is obligated to do so. Presenting a "rescission" provides Congress an option.

Article V precludes any "rescission" prior to two thirds submission by the state legislatures. Article V precludes "rescission" of an application after two thirds submission by the state legislatures. Therefore the Constitution grants no authority under any circumstance to the states to "rescind" state applications (and thus prevent other states from holding a convention) for a convention call once the applications have been submitted to Congress. The only way a state can "rescind" an application is not to submit it to Congress in the first place.

 
These constitutional facts also explain why a state applications limiting discussion of amendment subjects at a convention or demanding applications be on the same amendment subject are unconstitutional. In both cases, the state in question is attempting to regulate the actions of other states. The state in question has no authority to do this. As all states are equal, their access to a convention is equal. No state can prohibit another state from presenting a subject of discussion at a convention or limit the convention to only to what one state (or even a group of states) wishes to discuss. Such discrimination is a violation of the 14th Amendment equal protection under the law clause. (See: Discussion Page 17 E).

In sum, the theory of JBS/Eagle Forum that states have a right of "rescission" of state applications is, under the law, a "legal fiction."  Despite nearly 40 years of political effort to "rescind" applications JBS/Eagle Forum proven "rescissions" are anything but a political expression entirely without legal substance or effect. Not a single application has been "rescinded" as a result of their efforts because such "rescission" is prohibited by federal law. Legally, Congress cannot ignore a state application on the basis of a fictional "rescission." All applications therefore submitted to Congress remain in full  force and legal effect. The JBS/Eagle Forum theory of "rescissions" is false.

Continued to Page 6E

Page Last Updated: 8-MARCH 2017