Upcoming Article V. Convention

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

What is an Article V. Convention?

Article V. of the United States Constitution provides for two methods to propose amendments to the U.S. Constitution; amendments may be proposed by the Congress, or by the States through convention.

What are the rules of an Article V. Convention?

• The purpose of the convention is the only purpose it may carry out.  If the convention is for the purpose of proposing amendments to the Constitution of the United States, then the convention may not be used for the purpose of establishing a new constitution, or completely rewriting the existing one; only proposals for amendment to the Constitution may be offered by such a delegation.  Those proposed amendments are not a valid part of the Constitution of the United States unless they are subsequently ratified by a minimum of three-quarters of the States, as established by Article V. of the Constitution.
• Article V. Conventions are not limited to single amendment proposals.  Multiple proposed amendments may be discussed, voted on, and offered to the States for ratification by an Article V. Convention.
• Two-Thirds of the States need to apply for a convention for it to be held.  To date, over 750 applications by 49 States have been provided.
• Officeholders may not act as a delegate.  It is true that during the Constitutional Convention of 1787 some of the delegates were officeholders, such as Alexander Hamilton.  The ratification conventions, however, did not allow officeholders to be delegates.  Ratification by convention, rather than by state legislature, required the members of the convention to be separate and different from the state legislature.  Historically, only New Mexico has ever adopted a rule that allows state legislators to be the delegates of a ratification convention.  The matter has never been challenged regarding if it is a violation of Article V.  The method for choosing the delegates is an ongoing debate as there is no precedent when it specifically comes to an Article V. Convention.  Proposed ideas and historical methods used include, but is not limited to, delegates volunteering to represent their state or district, appointment of the delegates by a legislative body such as a state legislature or U.S. Congress, an election of delegates by districts, counties, or regions, or each state can be left to itself to decide the method which may mean the method of choosing delegates may vary from state to state.  Reason dictates that if the delegates are to be "separate and different" from the state legislature, and if the delegates may not be officeholders, the delegates should be elected based on established districts in a vote by the citizens.
• Each State is allotted one vote.  Precedent is offered by the 1787 Constitutional Convention, the rules of the Continental Congress, the Articles of Confederation, and votes in the House of Representatives outside of legislative votes (such as when the choice for President devolves upon the House of Representatives).
• Each vote is by State, not individuals, so each State must have a minimum of two delegates in order for their vote to be considered.  Precedent regarding this rule is provided by the New York delegation in 1787 when, after the departure of John Lansing and Robert Yates on July 10, Alexander Hamilton remained as the lone delegate for New York.  Hamilton departed with his two fellow New York delegates on July 10, as well, but returned to the convention on August 6.  It was determined by the delegation that Hamilton may participate in all of the debates, but New York may have no vote on any matter unless at some point the number of delegates increased to a minimum of two.
• While the rule was that the maximum number of delegates was seven (a rule practiced by the Continental Congress), Pennsylvania broke that rule during the Constitutional Convention in 1787 by adding Benjamin Franklin as an eighth delegate.  Ultimately, the number of eight delegates was accepted by the body.  Therefore, it is up to the convention delegates to determine the maximum number of delegates, if such a limit is deemed necessary.  Since a State only has one vote on the floor, the maximum number of delegates a State allows to participate in a convention is a moot point, and should be left to the State to decide.
• To participate in a vote a delegate must be present.  Provided this rule was established prior to the advent of modern technology, the jury is still out regarding presence by electronic, telephonic, or digital means.  The rule may be one that would need to be addressed by the delegation of the convention.
• A quorum is required by a majority of States (2/3 in the case of an Article V. Convention).
• Approval of a proposed amendment in order to send it out to the States for ratification requires a two-thirds approval.  This rule is consistent with the requirements of Congress in order to approve an amendment proposal, as well as the language of Article V. and the debate notes by James Madison regarding the topic during the Constitutional Convention of 1787.
• Each State sets up its own quorum requirements.
• Public or Secrecy?  The rule has never been clearly defined or established, and conventions have used both. The ratification conventions were public, but the 1787 Convention was conducted with a closing of the curtains over the windows, a closing of the doors, and a decision to not hire a clergy to lead them in prayer because they could not afford the cost of hiring a clergy, and because they wanted to keep prying eyes out of the chambers in order to maintain secrecy.  Thomas Jefferson disapproved of the "Secrecy Rule", stating in regards to it in a letter to John Adams, "I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members. Nothing can justify this example but the innocence of their intentions, and ignorance of the value of public discussions."  James Madison supported the rule, recognizing that those who did not understand what was going on may misinterpret the proceedings and misinform the public regarding what was going on.  Madison wrote to James Monroe, “I think the rule was a prudent one not only as it will effectually secure the requisite freedom of discussion, but as it will save both the Convention and the Community from a thousand erroneous and perhaps mischievous reports.” The rule was as follows: "That no copy be taken of any entry on the journal during the sitting of the House, without leave of the House. That nothing spoken in the House be printed, or otherwise published or communicated without leave."
• A Secretary shall be appointed to take the minutes of the convention.
• Minutes regarding the previous session must be read at the beginning of each new session.
• Orders of the day shall be read after the minutes; and either discussed or postponed, before any other business shall be introduced.
• Delegates, when speaking, shall address the President of the Convention.  While a person is speaking he will be given full attention by all members of the delegation, with no delegate during that time passing between the speaking delegate and the President, no delegates holding verbal discourse between each other, and no delegate reading any written material such as a book, pamphlet, or paper (printed or manuscript).  Note-taking is encouraged as revealed by the fact that many of the delegates, in addition to James Madison, took studious notes during the 1787 Convention.
• A member may not speak a second time on a particular subject until all other delegates who wish to speak on the topic enjoys the opportunity to provide their own words on the subject.
• During the Constitutional Convention in 1787 the Secretary repeated a motion after it was moved and seconded, before debate on the topic ensued.  Modern rules, supported by Robert's Rules of Order, typically leave the responsibility of repeating motions on the floor to the Chairman (or President) of the meeting.  In either case, each motion shall be repeated after moved, and after seconded, before debate on the topic ensues, and before a vote on the subject is entertained.
• A person who makes a motion may withdraw their motion before a vote is taken (during debate, or immediately afterward).
• Amendments to a proposal may not be made during discussion.  Amendments to a proposal must be a separate motion and discussion.
• Postponement of the discussion of a proposal may not be entertained once the discussion on a proposal has commenced.
• Postponement of the vote on a proposal may be considered after the discussion regarding the proposal is complete.
• Reconsideration of a motion may be made at any time after its approval, but such reconsideration must be approved by a majority vote of the individual delegates.
• Committees shall be determined by an individual vote by the delegates.  Rules for the number of committee members, and other considerations, shall also be determined by a vote of the entire delegation.  In each case a majority vote is necessary to approve.
• A member may be called to order by any member; questions of order shall be determined by the Chairman/President of the convention without appeal or debate.
• A motion for adjournment may be made at any time, and if it is seconded the motion shall go to a vote without discussion.

Unless otherwise noted, the rules provided were presented during the Constitutional Convention of 1787 as per Madison's Notes on the Constitutional Convention, May 28, 1787, with additions added May 29.  

Which came first?  Article V. Convention, or the proposal of amendments by Congress?

While there has never been any amendments proposed by convention, nor has a convention for the purpose of proposing amendments ever convened, the concept of proposing amendments by convention rather than by Congress came first.  In the Virginia Plan proposed by James Madison to the delegation at the Constitutional Convention it states, "the assent of the National Legislature ought not to be required."  This was subsequently modified by the Committee of Detail to include a process whereby Congress would call for a constitutional convention on the request of two-thirds of the state legislatures.  It wasn't until September 10 that Alexander Hamilton suggested that the federal Congress should also be allowed to propose amendments to the Constitution (note that Hamilton voiced his recommendation one week before the completion of the construction of, and the signing of, the document).

https://press-pubs.uchicago.edu/founders/documents/a5s2.html

Is an Article V. Convention dangerous?

One could argue that any political endeavor carries with it a certain level of danger.  The enemies of liberty have attempted to infiltrate just about every tool we have.  For example, they have infiltrated and have taken the control of elections.  Should we, then, as a result, avoid using elections?  Of course not.  

Same goes for an Article V. Convention.  It is not a "Con-Con" (Constitutional Convention).  We had one Con-Con back in 1787, and it was used to write our current constitution.  Another convention of that nature is not necessary, for the constitution they produced is a good one, which has largely stood the test of time, and is currently the oldest constitution still in effect.  There are groups who fear an Article V. Convention, and claim it will become a runaway convention.  I understand those fears.  We live in an age where the enemy is hitting us from all angles.  But, you don't use a sponge to hammer a nail because you fear you might hit your thumb with the hammer.  You use the tool as it was intended, for the intended project, but you do what you can to make sure you don't hit your thumb.  Same goes for an Article V. Convention.  Make sure it follows the rules, and make sure it doesn't become a runaway convention by participating in a manner that keeps the enemy at bay.  I tell my friends who are members of the John Birch Society and Eagle Forum, who greatly fear the use of an Article V. Convention, "Thank God you are so fearful.  That way, I know that when a convention is held, you'll be all over it to make sure it doesn't become a runaway convention."

Can the state legislatures or Congress control the convention?

The short answer is, "No."  As stated earlier, the purpose of having a convention is that it will act and operate separately and differently than a proposal process being held by a legislative body.  The Article V. Convention belongs to the people of their State.  That is not to say that legislatures will not try to pass, or have already passed, rules regarding an Article V. Convention.  Those rules, however, are unconstitutional.  The state legislatures have no authority to dictate the terms of a convention, and Congress' only role is to call a convention (and since they've refused to do that, the right to a convention has been denied and it is up to the people to make sure their natural right of holding a convention is assured them).

In Conclusion

Amending the Articles of Confederation was nearly impossible, so the Founding Fathers sought to enable the States to also participate in the amendment process, and to change the ratification of an amendment from unanimous approval to a three-quarters ratification.  

Encouraged by the language in the Virginia Plan offered by James Madison, in fact, early debates called for the states to be able to amend the Constitution without Congress’s participation in the process, or approval.  The Framers of the Constitution saw the ability of the States to amend the Constitution a check against potential federal tyranny, which would provide stability to the new government.  George Mason stated it was “better to provide for [amendments] in an easy, regular and Constitutional way than to trust [alterations] to chance and violence.” He argued that states should have the power to amend the Constitution without Congress’s approval because the national legislature would inevitably abuse its power and ignore states’ calls for necessary changes.  

Today's political arena and narratives have shown us that if left to Congress there is a long list of proposals that would never be made.  However, if an Article V. Convention is convened, proposals for a balanced budget, the eradication of the murder of the unborn, the repeal of the Sixteenth and Seventeenth Amendments, and the clarification of misinterpreted clauses in the Constitution could be offered.  

George Mason expressed that when it came to the States proposing amendments by convention Congress must not be allowed to be influential on the process whatsoever, for if given that opportunity Congress may block constitutional amendments favored by the states.  Gouverneur Morris and Elbridge Gerry proposed Congress may have one role, which may ensure the Congress would not otherwise interfere with the convention, by requiring Congress to call a convention of the states for proposing amendments upon the application of two-thirds of the states.  The plan was approved unanimously.

While I believe an Article V. Convention is a valuable tool on the toolbelts of Patriots when it comes to restoring the republic and the original intent of the United States Constitution, I am a firm believer there are other tools that are at our disposal that may work well independently, as well as in conjunction with an Article V. Convention.  Nullification, which is the concept that as parties to the Constitution which is a compact between the States the States are the final arbiters of the Constitution (rather than the courts) and as a result they may refuse to implement or comply with a federal law or action if they deem it to be unconstitutional.  The States, however, have become too spineless to stand up to the federal government.

Another option is Republic Review, through which the States audit and encourage correction of federal legislation and activity.  The corrective measure would be also carried out in a convention-style, and is supported by Federalist Paper #49 by James Madison:

...that a convention is necessary for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose. ''As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.

The First Amendment provides for a petition of the government for a redress of grievances, which was once a commonly used tool by the people.   While the United States is not supposed to be a democracy, that does not mean that the people don't have a voice.  

The natural right to petition the government for a redress of grievances means that individual citizens, or an assembly of citizens, have the power to institute change in government.  The right to seek change through the exercise of this right includes being able to do so without fear of reprisal.  It is a natural right, so it also applies to our relationship with state governments, courts, and local governments as well as all parts of the federal government.  No one may stop you from offering a petition no different than you cannot be prohibited from exercising your religious beliefs, exercising free political and religious speech, participating in freedom of the press, or assembling freely with others as a part of a group or association.

The right to petition is typically viewed as being something performed by organizations, politically active citizens, and professional lobbyists.  It has taken many forms, including official petitions to place something on the ballot, petitions to introduce bills into state and government legislatures, meetings with political representatives and staff members of various offices or departments of the various branches of the government, and a good old fashion protest or rally.

The right to petition may also be undertaken as a non-official document or action.  We have, as citizens, the right to create citizen petitions and citizen committees.  Citizen petitions are not ballot petitions.  They are specifically designed to demand government at different levels to comply with the Constitution from a grassroots effort.  

The design intended by the Framers of the First Amendment stems from the petitions used to communicate grievances to local assemblies in colonial America.  It is the government's duty to consider all petitioner grievances.

Petitions were seen as being linked to a corollary duty of legislative response.  The Continental Congress attempted to address every petition it received.  The use of petitions by abolitionists was seen as hostile and Antebellum Congresses refused to respect the petitioners' right to a legislative hearing.   Angry that the citizens kept petitioning about slavery Congress unconstitutionally adopted a series of anti-slavery "gag rules" in the hopes of effectively abolishing the right of petition.

Before unconstitutional rejections of petitions by the people as we saw regarding the abolitionist movement local assemblies responded to a wide spectrum of petitioners' concerns.  No sharp line dividing constituents from representatives existed.  The control of the legislative agenda was driven by the initiatives put forth by the colonists' petitions.  

According to the 1986 Yale Law Journal (November 1986, 96 Yale L.J. 142), "Petitions assured a seamlessness of public and private governance.  Assemblies would receive petitions, refer them to committees for consideration, and then act upon the committee's recommendations.  This process originated more bills in pre-constitutional America than any other source of legislation."

The colonists viewed the central government, which in their case was the British Parliament, as not having the authority to meddle in local issues.  This is why the shadow government that became local colonial assemblies was formed.

"From the beginning, the primary responsibility of colonial assemblies was the settlement of private disputes raised by petitions.  The young assemblies struggling for domestic authority were especially attentive to citizens' grievances and recognized that responsiveness to petitions was a way of extending their jurisdiction.  In addition, the local character of colonial politics, where assemblies responded to information from inhabitants, even the disenfranchised, made petitions vital initiatives for governmental actions."

Petitions, in the beginning, were the ultimate way to ensure that only local issues were handled by only local committees or government.  

The tools on our toolbelt to restore our republic have been hijacked, controlled, and taken from us.  The only way to get them back begins with taking them back through a process that we have control over.  Since elections are being compromised, the States are too gutless to use nullification, the constitution's original intent is being ignored, and petitioning the government for a redress of grievances has all but disappeared, an Article V. Convention is our best tool for reigniting the liberty inherited by We the People.  While I am not fully convinced that an Article V. Convention solves everything, considering what the tyrants have done to all of the other mechanisms available to us, we have to start somewhere and an Article V. Convention is the logical first step towards We the People taking back the reins of our republic.

And the first step towards that is to actually holding a convention, official or not, so that we can get our feet wet and begin the process of restoring the republic.  And, it turns out on May 25 a convention is ready to roll.  I have offered to serve as a delegate, and I would like you to, as well.  Join up as a volunteer delegate at https://articlevconvention.org/

-- Political Pistachio Conservative News and Commentary