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A Discussion of Issues With the "Same Subject" Directed Convention
Introduction



As shown by the list of "same subject" applications  multiple amendment subjects have reached the required two thirds threshold of applying states required by Article V. This fact presents an immediate problem for the unproven theory of "same subject" directed convention. As implied by its title a "same subject" directed convention is mandated to be convened on a single amendment subject with the appointed delegates directed to only discuss that amendment subject. Some advocates of this theory have gone so far as to enable passage of state laws mandating felony arrest for delegates who fail to follow the "instructions" of a few select state legislators as to what amendment subject will be discussed and proposed by a convention. This has been done in the political belief that only their amendment proposal can or should be considered by a convention in order to effectuate the necessary and needed changes required to resolve the issues of this national government.

The only comparison in American politics related to a directed national convention where this theory was put to the test of actual political execution is the failed Annapolis Convention held in 1786 prior to the highly successful 1787 Convention. Quoting Wikipedia: "The Annapolis Convention, formally titled as a Meeting of Commissioners to Remedy Defects of the Federal Government was a national political convention held September 11–14, 1786 at Mann's Tavern in Annapolis, Maryland, in which twelve delegates from five states–New Jersey, New York, Pennsylvania, Delaware, and Virginia–gathered to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected."

The commissioners were limited to in their discussions to only to the subject of remedy of problems related to "Trade and Commerce of the United States." The failure and reasons for the failure of this "same subject" directed convention is evident by quoting the report of the convention made to Congress when the Annapolis Convention utterly failed to take any action on the subject assigned it:

"In this persuasion, your Commissioners submit an opinion, that the Idea of extending the powers of their Deputies, to other objects, than those of Commerce, which has been adopted by the State of New Jersey, was an improvement on the original plan, and will deserve to be incorporated into that of a future Convention; they are the more naturally led to this conclusion, as in the course of their reflections on the subject, they have been induced to think, that the power of regulating trade is of such comprehensive extent, and will enter so far into the general System of the federal government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a correspondent adjustment of other parts of the Federal System." See: http://avalon.law.yale.edu/18th_century/annapoli.asp

Thus the experience of the Annapolis Convention highlights the central problem of a "same subject" directed convention which can be summed with two inquires (1) what if the wrong subject is picked; (2) what if its predetermined answer is inadequate to the required solution? In sum, what if they guess wrong?

Because of the public record of applications, the "same subject" directed convention theory presents an immediate dichotomy by forcing a choice between four different amendment subjects (all of which have equal constitutional right to convention consideration) such that only one "subject" is considered by the convention. In light of the present evidence, this would require one of two solutions:
 Either alternative presents massive constitutional, legal and political issues. None of these issues exist in the numeric count process as all subjects submitted in applications are presented to the convention with the convention charged with disposal of the various subjects thus eliminating any choice on the part of Congress or the states as to the selection of amendment subjects discussed at a convention.  A more in depth discussion of the constitutional, legal and political issues of "same subject" directed convention follows:
Constitutional Issues

Having already discussed the issue of allowing Congress extraordinary constitutional power of outright rejection of applications where absolutely no constitutional authority exists in order to effectuate the theory of "same subject" directed convention and with the mere summation of the problem presenting the obvious dangers of such a system of government, that of allowing Congress to "deviate" from the Constitution, further discussion on this point appears redundant, yet necessary as those concerned with the proposition by this method appear entirely unconcerned with consequences of such action.

Allowing Congress (or the states through their applications) power to determine which "subject" is discussed at a directed convention means Congress is clearly involved in the amendment proposal process. What should be obvious to all from the beginning is that if Congress is afforded the opportunity to reject three amendment proposals, what is to prevent it from rejecting four?

The danger of a directed convention becomes even more acute in regards to the states when it is realized that ultimately one state must be selected from the many to determine which amendment subject shall be discussed and under what terms such discussion shall ensue. The dangers of placing one state above that of its sister states in the Union should be obvious to one and all. As mentioned, some states have already enacted felony laws regulating a convention such that convention  discussion is limited to a subject preselected by the state legislature.

The danger of this approach is best demonstrated by examination of the reality of a convention. This is accomplished by no more than the acknowledgment that a convention must be held in some location in order for it to conduct its assigned task. Those favoring "same subject" directed convention do not believe Congress has authority over such a convention. Therefore they all advocate a convention be held in a state rather than in Washington DC. The most frequent location specified is Dallas, Texas. Given the theory of "same subject" directed convention this means when such a convention is convened under the terms of state sovereignty it will become subject to, and only subject to, those state laws of the particular state in which the convention is held. Thus, if the state has directed convention laws it will be those laws  alone and those state legislators alone which will control, not only what their own delegates say and do but what all other delegates say and do as well. This is because all delegates would be subject to the sovereign authority of the laws of the state in which they are meeting. Hence authority granted by the state giving it control of convention delegates automatically means state control over all delegates. No law presently passed in any state regulating convention delegates excludes this possibility. At present no state law in any state assumes jurisdiction or sovereign authority beyond its own state boarders including the directed convention legislation. The only possibility for such state law to have its intended effect to control delegates in another location outside of its state boarders would be the acceptance of extraordinary state sovereignty, that is, that a particular state law has sovereign authority in all other states. Such a situation is a contradiction of the one of the most fundamental principles of this nation--state sovereignty. Numerous Supreme Court rulings as well as constitutional language prohibits this interpretation. Thus, state laws effecting or controlling delegate behavior end at the state line and only the law pertaining to such action in the state law in which the convention is held. The Supreme Court has already ruled a convention is federal not state in nature. Thus these state laws as unconstitutional.

The use of Congress to resolve the issue of a "same subject" directed convention is no less perilous. Congress cannot employ its legislative powers in determination of amendment subject at a directed convention. The Supreme Court ruled in  Hollingsworth v Virginia, 3 U.S. 378 (1798) the President shall have no part of the amendment process. Without presidential participation, under the terms of the Constitution, legislative passage of such determination is unconstitutional. In order to participate in such legislation means the President must be afforded his right of veto on the question of amendment subject. Such an opportunity is in direct contradiction of the expressed issue resolved by the Supreme Court in Hollingsworth. The reasoning then is as valid now: If the President is allowed a veto, such veto means the President would determine the amendment "subject" as well as determining whether the convention is held at all. Without an approved amendment subject, under the theory of "same subject" directed convention, the convention is not held. Hence the President determines the amendment subject of the convention and whether such a convention is even convened. This is even more of a constitutional affront than having Congress "deviate" from its constitutional authority and micromanage the convention.

As Congress would have no constitutional alternative it would be forced to employ its amendment proposal authority, which, under the terms of the Constitution, require passage of any decision by two thirds vote in each house of Congress. The problem is, under the terms of Article V, this means Congress can only propose its own amendment, rather than allowing a convention to propose that amendment. This "solution" in fact does not solve the problem. Under the terms of the Constitution, Congress is still required to call the convention (a decision which according to Congress itself, allows no vote, debate or committee (See: www.foavc.org/reference/05051789.pdf)) but cannot establish the subject matter of that convention because the process available to Congress only allows it to propose its own amendment rather than calling the convention and establishing the convention's subject matter agenda. Hence, unless it is conceded Congress be granted extraordinary constitutional powers presently outside those contemplated in the Constitution (such as by-passing the President in its legislative proposal or denying the President his constitutional right of veto), no solution to this constitutional conundrum is possible under the "same subject" theory of directed convention.

None of these issues arise in the numeric method of count as all proposed amendment subjects are presented equally to the convention which is free to propose amendment(s) without congressional or presidential interference.

A second constitutional issue is violation of the 14th Amendment's equal protection clause. In basic terms, all applications from all states are equal, having equal effect in causing a convention call. Discrimination by Congress in favoring a particular amendment subject over another amendment subject violates the equal protection clause. Ultimately, one set of states is granted the ability to propose its amendment subject while other states are denied this same constitutional opportunity. Indeed as already noted, ultimately one state  is favored over all others. The application language of such application proposals (varying from state to state) must ultimately devolve to a single application with singular language under the theory of "same subject" directed convention. Article V contains no such stipulation or power thus mandating extraordinary constitutional powers not contemplated (indeed rejected by the 1787 convention) for either Congress or the states in order to execute the above stipulations all obtained, of course, with benefit of judicial review or installed by means of the amendment process.

Numeric count does not violate the 14th Amendment equal protection clause. No amendment subject and hence, no discrimination, is afforded any state application until the convention by means of proper debate, consideration and vote disposes of the particular subject. As Congress has repeatedly demonstrated in its record of 27 amendment proposals these powers of discrimination (debate, consideration and vote) at the level of the convention, are inherent in the authority of the convention to propose amendments such actions are obviously constitutional under the authority of being a "Convention for Proposing Amendments."
Legal Issues

As Congress has established a rule (http://www.foavc.org/reference/Resolution_5.pdf) in the House of Representatives related to gathering state applications for a convention and the House Judiciary Committee has been assigned this duty, federal laws regarding convention applications come into effect. This specifically includes 18 USC 1001, Statements or Entries Generally forbidding falsification of material facts.

The statute reads:

"(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or (2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate."

In plain terms 18 USC 1001 forbids the falsification of any material fact of public record. Assuming Congress were to accept "same subject" directed convention as the basis of counting applications and would limit a convention call to a single amendment subject, this action violates 18 USC 1001. It would be a false statement regarding the public record of applications to limit a convention call to one amendment subject as the public record clearly shows:

Therefore under ALL circumstances it is violation of federal criminal law to limit a convention to a single amendment subject. Doing so means all members of Congress participating in such action can face federal criminal charges.

The numeric count process raises no such criminal liability for members of Congress as they would be calling the TEN conventions on the basis of sets of applying states, irrespective of any amendment subject contained in any application in that set, with the convention free to discuss all amendment subjects. See: www.foavc.org/StateApplications/Numeric.htm.

This law eliminates a second possibility: Congress attempting to "cherry pick" an amendment subject, that is favor a "single subject" convention based on either:

18 USC 1001 prevents all these possibilities. Any attempt to present the public record of application such that it "favors" a particular amendment is a violation of federal criminal law. Such a "trick" or "scheme" obviously intended to falsify or conceal the actual public record of applications is therefore illegal.

Numeric count poses no such issues as amendment subject is not even considered when Congress calls a convention. Moreover as described in our page discussing unconstitutional and illegal rescissions, such action would be tampering with the federal public record. This would cause additional criminal charges. See: www.foavc.org/StateApplications/Rescissions.htm. 

Political Issues

Politically, a "same subject" directed convention is political suicide. The two questions of correct choice of subject and whether that predetermined amendment subject is adequate to answer the needs and issues of this nation place all behind its inception and execution, should they be proved wrong in their choices, in a perilous political position. At the very least they will be blamed for all consequences of choosing badly meaning their political capital will be greatly reduced if not wiped out entirely by the political backlash. Moreover, as demonstrated by the Annapolis Convention, "the [amendment subject] is of such comprehensive extent, and will enter so far into the general System of the federal government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a correspondent adjustment of other parts of the Federal System."

A simple examination of political polling illustrates the point: For years favorable ratings of Congress has hovered between 9% and 14%. Historically favorable ratings have hovered in the 30 to 40 percent range since the 1970's with the singular exception of 84 percent immediately following the 911 attack of September, 2001. See: http://www.gallup.com/poll/1600/congress-public.aspx. This is no longer true. Political support of all government is plunging. Given many Americans already believe Congress is doing a poor job, obviously an attempt to blatantly subvert the Constitution by creating a "same subject" directed convention when the language of the Constitution clearly does not permit such action, will hardly serve to achieve a rise in polling data. The fact explicit Supreme Court rulings are blatantly ignored will not help the matter either. Reaction to such usurpation will be even more extreme should Congress "guess" wrong as to which subject a directed convention must consider. Worse, should the political consequences result in the American public coming to believe, had the Constitution been obeyed, that a convention COULD have solved the problems of this nation but was stopped from doing so by political greed, the firestorm will be catastrophic.

THE POLITICAL FACT IS:  IF CONGRESS OBEYS THE CONSTITUTION AND CALLS THE CONVENTION ON THE BASIS OF NUMERIC COUNT AND CALLS ALL CONVENTIONS REQUIRED BY THE TERMS OF ARTICLE V, PRESENTLY TEN CONVENTIONS, IT WILL ENJOY 100% POLITICAL COVER FROM ANY POLITICAL CONSEQUENCES WHICH OTHERWISE MIGHT BEFALL CONGRESS. ON THE OTHER HAND IF CONGRESS ELECTS TO CREATE A "SAME SUBJECT" DIRECTED CONVENTION IT WILL ASSUME RESPONSIBILITY FOR ALL POLITICAL CONSEQUENCES OF THAT DECISION RESULTING IN 0% POLITICAL COVER.

The reason Congress enjoys such political cover is Congress is mandated to call the convention and must do so on the basis of a numeric count of applying states. Thus, political consequences, subject matter a convention will consider and any other political issues, are, under the terms of the Constitution, irrelevant. However as the Constitution makes a convention call "peremptory" and even removes the right of debate, vote or committee from Congress, this means Congress cannot be held accountable for these political consequences. Congress simply states the truth: "We are obeying the Constitution and have no choice in this matter." Consequently, the "smart" political move for Congress is to call Article V Conventions in such a way they avoid all political liability meaning Congress calls an openly elected, entirely transparent, "ivory snow 99.999% pure" convention by means of a calling process which will stand the test of time. Thus the process will work in the present and a millennium from now. Political blame for any mistakes a convention might make will then fix either to the convention, the states or the people themselves as the case may be, which is where it should attach.

There are more political pitfalls of a "same subject" directed convention. In basic terms all the political ambitions and goals of those advocating a specific amendment subject to exclusion of all other amendment subjects are placing their political bets in one political basket. Unlike the numeric method which offers TEN conventions each with the opportunity to present the same amendment issue on TEN different occasions, a "same subject" directed convention offers ONE chance for proposal and successful ratification.

It is a cardinal rule of politics that political circumstances change over time. Thus, what may have failed previously may succeed in the future. This political axiom is no less true for the convention mode of amendment proposal.  If the convention fails to pass the proposal under the "same subject" directed convention theory, all of the applications which caused that convention to be convened are discharged having served their constitutional purpose. Thus, an entirely new set of applications with identical subject (and some even urge identical language) must be acquired from the state legislatures before that subject can be discussed again. The public record shows that in all instances it has required over 30 years to obtain the present FOUR sets of "same subject" applications. Politically this means it will require decades to acquire a new set of applications for another "same subject" directed convention--assuming the state legislatures are inclined to submit the applications--a not an all together certainty given the fact the subject has already failed once in convention. It is another axiom of politics that backing a loser is not a good political strategy. 

On the other hand, as all TEN sets of applications are a matter of public record and there is no limitation on debate or proposal, a numeric based convention offers the only opportunity of repeated discussion on the same amendment subject. In addition, a numeric based convention offers the political advantage to advocacy groups of no longer being concerned with acquiring new state applications so that they may present their amendment subject. Instead these groups can now politically concentrate on what is most important: gaining political support for their amendment proposal with the aim of passage in the convention and ratification in the states. In short, a numeric convention offers the chance to move past the first stage of convention amendment proposal--acquisition of applications sufficient to cause a convention call--and into the second stage--amendment proposal, not to mention the most important and final stage--ratification.

This is another political obstacle for any proposed amendment from a "same subject" directed convention. "Same subject" directed convention advocates, as a general rule, believe the American people should be excluded from the amendment process. They instead advocate leaving control of the amendment proposal process in the hands of a few select state legislators with the American people having no say in the election of delegates or selection of convention agenda those delegates will consider. Many advocate arrest of convention delegates if these delegates fail to follow "instructions" given them by these state legislators. Some state legislatures have passed laws to this effect. While this may appear, at first glance, to have some political advantage in getting a convention to "pass" a proposed amendment on a specific amendment subject, it is, in fact, political suicide as the proposal must face ratification where such laws have no effect and where the Supreme Court has already ruled such laws are unconstitutional.

An example using one amendment proposal (but equally applying to any amendment subject in a "same subject" directed convention) illustrates the difficulties:

For the purposes of this illustration let us assume:

The "same subject" directed convention is held and the predetermined result occurs: the delegates, faced with felony arrest should they fail to obey "instructions" pass the predetermined proposed balanced budget amendment. Loud cheers erupt from the delegates as they celebrate the passage of the BBA! However, noticeably absent from all these proceedings are delegates from what can be described as the "liberal" states--save one--who appears at the start of the convention, sits quietly in a corner and says nothing UNTIL the chair is about to announce the "vote" for the balanced budget amendment. This delegate then asks to address the convention prior to the announcement. He is recognized by the chair and rises to address the convention. Hequietly removes a single piece of paper from his suit pocket and reads the following into the record:

"To the "same subject" directed convention:

Please be advised the leaders of the following 13 liberal state legislative houses have determined their chambers will vote "no" on the ratification of the proposed balanced budget amendment. As the Constitution demands ratification of any amendment proposal, either by Congress or convention, be passed by three-fourths of the state legislatures and without the support of our chambers such passage is mathematically impossible, the proposed balanced budget amendment is hereby defeated for lack of ratification support.

Sincerely, [Names of the 13 individuals]."

The liberal delegate then departs having accomplished his political purpose.

Naturally, the "same subject" directed convention advocates smile smugly. They will simply have Congress chose the second mode of ratification proposal--state ratification conventions elected by the people and thus intended to circumvent the state legislatures. However, as is the case when anyone is snubbed then called upon by those who snub him to rescue the person doing the snubbing,  "same subject" directed convention advocates will find the American people, having been snubbed from any participation in the election of delegates or selection of convention agenda, will respond in typical human fashion: they vote for delegates to the various state ratification conventions opposed to a balanced budget amendment and the matter fails for lack of ratification as there is no popular support for its passage. How can there be as "same subject" directed convention advocates have cut the American people out of the process all along?

On the other hand...

If a convention is held based on numeric count of applying states meaning TEN conventions are required, and, as described by Supreme Court rulings, all convention delegates are elected by the people, when the liberal delegate stands up and reads his letter, the conservatives smile smugly but for different reasons. First, they know as the American people have participated in the amendment process there is likely chance for ratification passage at the state convention level given delegates supporting  its proposal have been elected. Second, with TEN conventions in their pocket, the conservatives have political time on their hands. Time to change people's minds; time to get members in state legislatures replaced with others who favor their amendment proposal; time to build political support of overwhelming proportions such that refusal by any state legislature is political suicide; time to build popular support so that state ratification conventions will favor the proposal. All this time because these advocates need no longer concern themselves with spending decades getting new applications--that work is complete. Instead they can concentrate on getting their amendment proposal passed. So, when the liberal delegate walks out the door having delivered his message, all the remaining delegates say is, "See you next convention."

In sum, the "same subject" directed convention presents massive constitutional, legal and political issues all of which are avoided by use of the numeric count of state applications to arrive at convention calls. These constitutional, legal and political problems unique to a "same subject" directed convention are in addition to the already massive task of obtaining the necessary public support for the amendment proposal. In many cases this added burden makes obtaining the necessary political support for an amendment proposal impossible. Numeric count has none of these issues and thus the political burden borne by amendment proposal advocates regardless of subject is considerably lightened. The answer is obvious: the only choice is for Congress (and the states) to employ a numeric count of applying states as stated in Article V and avoid the complications of a "same subject" directed convention.