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Page 6 D--Continuing The Discussion of JBS, Eagle Forum
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.
leader in JBS/Eagle Forum, who was responsible for the anti-convention
campaign has admitted "rescissions" have no legal affect or effect
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
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
According to the theory of JBS/Eagle Forum, state legislatures have the
right to "rescind" or "nullify" their application, that is, declare the
"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been rescinded.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
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.
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
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
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
"rescind" applications therefore appears not rest on legal case law or
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...,"
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
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
part of that federal record.
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
to enlarge) makes it a crime to "make or use any false writing or
document knowing the same to contain any materially false, fictitious,
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
As 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
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).
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
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
(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
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
"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.
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
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
"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.
Page Last Updated: 8-MARCH 2017