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The US House Judiciary Committee office confirmed they are gathering the original applications from State Legislatures for an Article V Convention to propose amendments to the US Constitution that were submitted to Congress over the last 200 plus years for the first time in history. Ohio Republican Steve Stivers proposed and passed a rule change ( Resolution.pdf ) demanded by myself and others to create a public record and official tabulation of these applications that are scattered throughout the Congressional Record and never before tracked until now.

Article V of the Constitution states:
The Congress, … , on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof

If you have been a follower of this blog, you were able to see how this request to the Clerk of US House and Senate Parliamentarian have worked their way through the offices including the Speaker Boehner’s, to force a rule change Congress never wanted to make. Republican Steve Stivers mentioned the necessity for a balanced budget amendment but the State applications are being reviewed impartially and they will be listed on a webpage hosted by the Clerk of House and listed by “State of origin and year of receipt”. There is no partisan filtering of the applications so that only the petitions for the balanced budget amendment are seen. All of the applications are going to get counted impartially or the States that have applications submitted to Congress that are not counted on the official list will create an even larger problem than they have now. 

The dereliction of Congressional duty to track these applications is certainly not by accident. 

Between 1973 and 1992, 22 bills were introduced in the House and 19 in the Senate that sought to establish a procedural framework that would apply to an Article V Convention. Proponents argued that constitutional convention procedures legislation would eliminate many of the uncertainties inherent in first-time consideration of such an event and would also facilitate contingency planning, thus enabling Congress to respond in an orderly fashion to a call for an Article V Convention. The Senate, in fact, passed constitutional convention procedures bills, the “Federal Constitutional Convention Procedures Act,” on two separate occasions: as S. 215 in 1971 in the 92nd Congress, and as S. 1272 in 1983, in the 98th Congress. Neither bill was considered in the House, although the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee held hearings on the general issue in 1985. As the prospect of an Article V Convention receded in the 1990s, congressional interest waned. Between 1991 and the time of this writing, no relevant legislation has been introduced. Although the content of these bills evolved over time, most of them were broadly similar, sharing various common elements, among which were the following.

The Article V Convention to Propose Constitutional Amendments:
Contemporary Issues for Congress
Thomas H. Neale
Specialist in American National Government

Many Constitutional scholars and lawyers have argued that Congress was not acting on these applications because the subject matter was “not identical enough” for them to act.  However we see through their own actions now and in the past that the question of subject matter was never a consideration. It was much simpler and subtle that the contrived explanations we normally hear. Congress never counted any of the applications from States. If they never count, they are never required to call the convention that is required once two-thirds or 34 states today have asked for it. Congress has no option to refuse this request. They did have the option to leave the duty to count and track these applications unassigned throughout our history.

The fact is all of the states have made clear applications for an Article V Convention over the course of our history except one, Hawaii. However just this week as new resolution was introduced, and if it passes, it will make the application for convention a unanimous request by all states. There is no state left to make application at that point so there should be no doubt that Congress’ inaction would be unconstitutional.

It does not look like it will get that far. The Judiciary Committee office said that it might not be overly optimistic to expect that this effort to gather the original applications from State legislatures by hand from the dusty boxes they have been collected and held in DC offices could be completed in four weeks. The new rule is not clear as to how the list online for review will be enumerated. We would have to assume everything on the list “counts”, so every time a state first appears on the list, will it be noted as such or will Congress let the world debate that point?

As James Madison expressed in Congress, these applications are not subject to the discretion of members on Congress, committee, debate, or a vote. It is a simple numeric count of states that have applied. Since there is not a right or wrong way to apply for a convention expressed in law or the Constitution, it seems that the new rule acknowledges that the intent of the state to apply is really the criteria for the application to get on the list. The rule states, “With respect to any memorial presented under clause 3 of rule XII purporting to be an application of the legislature of a State calling for a convention for proposing amendments to the Constitution of the United States pursuant to Article V”. The intention means more than the text.  

Is there uncertainty in this process? Of course, that is the point, we need to create the world we want. We can control our own destinies and we will at long last. If you are so afraid of uncertainty that you cannot participate in a constructive discussion, how can you get out of bed in the morning? Doing nothing will certainly lead to a world were our opinions mean nothing more than those of cattle.

At this moment the United Kingdom is preparing to write their first Constitution by crowdsourcing. All these centuries of the British Empire have continued without any written document, just layers of case law. The judges have created a system of government that the people are not terribly fond of. The Scots recently held an election regarding Scottish independence from the UK because they have an imbalanced system where they feel they lack representation.  That is not so different than the problem our founders faces with taxation without representation. It is also similar to the problem we have today in America where money from outside a state, community, or even from other nations floods the campaigns of candidates that support polices local communities are fighting against.

Our voices as constituents are downed out of our current democratic republic, therefore it is out duty to make this a government of the people, by the people, and for the people once again. If our voices are diminished by those of our potential enemies, corporations, or the Gordon Gekkos of the world; our system requires reform. We can only accomplish this by amending our Constitution. We will not go through this alone, and hopefully the UK will give us some ideas along the way. In the end we will want our nation to be the modern standard of democracy, the UK can be second best. Our children deserve the best world we can give them. Now we will have that chance. If you could give anything to your grandchildren in this process, what would you give them? 

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Daniel Marks

Daniel Marks