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About the Article 5 Convention and the US Constitution

By Bill Walker  Posted by erik larson (about the submitter)       (Page 3 of 8 pages) Become a premium member to see this article and all articles as one long page. (View How Many People Read This)   2 comments
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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.” (Emphasis added) 

This is not the only example. In Hawke v. Smith, 253 U.S. 221 (1920) the Court said: 

“This article makes provision for the proposal of amendments either by two-thirds of both houses of Congress, or on applications of the Legislatures of two-thirds of the states; thus securing deliberation and consideration before any change can be proposed. The proposed change can only become effective by the ratification of the Legislatures of three-fourths of the states, or by conventions in a like number of states.


The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.” (Emphasis added).


As I’m sure you aware, Article V does not provide for withdrawal of any application by the state for a convention once submitted nor does it provide Congress any option regarding a call based on those applications. The reason is obvious. If a veto were permitted then Congress would possess complete control of the Constitution (a fear very clearly expressed by George Mason in the convention when the convention proposal was discussed. Mason said: 

“The plan now to be formed will certainly be defective, as the confederation has been found on trial to be. Amendments therefore will be necessary, at it will be better to provide for them, in an easy, regular and constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse, may be the fault of the Constitution calling for amendment.” 

Equally obvious to a moderate constitutionalist such as yourself, a veto by the states would mean that a single state or small group of states could veto a convention on its or their own by simply withdrawing its or their application(s) at an opportune moment. 


However as I have indicated, there has been a victory in this issue in your favor. I would term it a real political coup and, as you did not trumpet in your letter to Mr. Hirschhorn I must assume you are unaware of it. It is the reason why Mr. Hirschhorn has taken up the call for an Article V convention because he is very concerned about your victory from a constitutional point of view. 


First, let us review how the Founders viewed the convention call and the obligation of Congress vis-à-vis it. As you mentioned in your letter to Mr. Hirschhorn the Federalist Papers, which obviously you regard as the definitive source as to the meaning and intent of the Founders in regards to the text of the Constitution, allow me to refer you to Federalist 85 in which Alexander Hamilton, author of Article V states: 

“[T]he national option upon the subject [a convention call]... By the fifth article of the plan the Congress will be obligedon the application of the legislatures of two-thirds of the states, (which at present amounts to nine) to call a convention for proposing amendments, which shall be valid to all intents and purposes, as part of the constitution, when ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths thereof.’ The words of this article are peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body. And of consequence all the declamation about their disinclination to a change, vanishes in air.” (Emphasis added) 

While it may be redundant, I will provide the definition of the word “peremptory” from Black’s Law Dictionary. (As a side note, this particular word is strictly a legal term and was only used by the Founders to describe this specific clause of the Constitution, the convention call. Further, as you may know, the convention unanimously passed the convention clause, not once but twice and even the opposition to the Constitution understood the clause required a numeric count of states nothing more to cause such a call.) 

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Erik Larson, Human Being and concerned Citizen. I only advocate and practice non-violent methods of social and political activism & change. Disclaimer: Opinions expressed here by me in my articles and diaries are my own. I do my best to only (more...)
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