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An Important Message Regarding An Article V Convention by Bill Walker

By Bill Walker  Posted by Erik Larson (about the submitter)       (Page 1 of 1 pages)   2 comments
Message erik larson
For many years there has been a debate regarding Congress calling an Article V Convention. Article V of the United States Constitution mandates Congress must call  a convention for the explicit and express purpose of that convention proposing amendments to the Constitution. The convention must be called, according to the terms of Article V, when two thirds of the state legislatures formally apply (or request) that Congress call a convention. The Constitution establishes no other term or condition for a convention call other than two thirds of the state legislatures must apply for a convention call by Congress. Thus, other than requesting the convention call, the content of a state application, has no bearing on whether Congress must call a convention. The Constitution is explicit: when two thirds of the states apply for a convention call, Congress must call. According to nearly all historical and academic studies, the call is peremptory. Peremptory is a legal term meaning Congress is given no option as to refusing to call a convention. Under the expressed terms of Article V, a convention is not a constitutional convention, that is, it cannot propose or write a new Constitution. 

Despite the fact  49 states have submitted over 700 applications  (an average of one application every four months by at least one state since our nation's founding) Congress has refused to call the convention as required by the Constitution. Indeed, Congress has been so remiss in its required constitutional duty that it has never even gathered the state applications into a single public record thus allowing  public inspection and, of course, forcing Congress to know when the states have applied in sufficient number to cause a convention call. Friends of the Article V Convention (FOAVC) has remedied the congressional omission by compiling the applications through use of photographic copies of official government records and listing them in a single public source. This public record irrefutably proves Congress is currently obligated to call a convention and violates the Constitution for refusing to do so. 

Many  individuals, state legislatures and public interest groups have, within the last few years, expressed interest in causing Congress to call an Article V Convention. They have suggested a variety of amendment proposals for a convention to consider. Many of these proposals are duplicates of applications already on file with Congress such as balanced budget amendment, state nullification of federal laws, repeal of federal income tax, limitation on national debt and so forth. 

To further illustrate how effective Congress is at avoiding its constitutional responsibility, consider that this public record proves at least three amendments subjects, apportionment, repeal of federal income tax and a balanced budget amendment each have received enough applications from the states to cause a convention call on each of those issues. The omission by Congress has thus far been so effective that political leaders of today continue to call for new applications (i.e. balanced budget amendment) despite the fact there is already a sufficient number of applications to cause the convention call for the amendment issue they say they want to achieve!  

Groups such as the John Birch Society and Eagle Forum have always opposed an Article V Convention by use of misstatements and other misleading information. Primarily through the work of FOAVC, by use of documented public records and other verifiable information, these misstatements have been corrected. FOAVC has always strived to correct the record regarding any misstatements about a convention regardless of whether the statements are from proponents or opponents to a convention. 

It is quite clear that as the truth about an Article V Convention has emerged and the deliberate misstatements have been corrected, the first stage of an Article V Convention, has been reached. This can be classified as the "why" stage of a convention call. The "why" stage deals with the question as "why" should a convention be called by Congress. During this period, the states decide for various political reasons that amendments should be proposed to the Constitution and thus submit the requisite applications to Congress for a convention call. As the states have submitted well in excess of the requisite 34 applications, it is clear the "why" stage of a convention call has been satisfied. However, as already noted, a convention call is based, not on the subject matter of any particular amendment contained within a state application, but on the actual application itself by the state. Thus, a convention call is based on a simple numeric count of applying states (34) with no terms or conditions. This basis of convention call is supported by irrefutable historic record and government statements made in Supreme Court rulings. 

The next stage in a convention call is the "how" stage which deals with the operational aspects of the convention itself. In truth, most constitutional scholars have not researched this aspect of a convention that well. Instead of conducting actual research to determine whether sufficient law exists to regulate a convention, most scholars and convention opponents prefer to state a convention should not be held as its operational aspects are unknown and thus, according to them, potentially "dangerous." Nothing is further from the truth. In fact, the historic record, Supreme Court rulings and other such public documentation provide more than enough law, and thus answers, to satisfy all questions regarding the operational aspects of an Article V Convention. In sum, there is more than sufficient well settled law to regulate a convention making its operational aspects no more mysterious or dangerous than any other action of any public governmental body. The same laws that regulate these bodies also apply to a convention. 

However, a few scholars have researched the operational aspects of a convention. One such report of the operational aspects of an Article V Convention was released by the Goldwater Institute in September, 2010. The report, entitled, "Amending the Constitution by Convention: A Complete View of the Founders' Plan" was written by Professor Robert G. Natelson. This report proposes a method whereby the states can control the agenda of a convention. The report suggests the states, by use of fiduciary law principles, can control all aspects of an Article V Convention. Under this plan, the convention becomes no more than a politically pre-determined event with little input or control from the people. The report can be read at Goldwater Institute

Because of concerns regarding what type of convention this plan will create and to correct factual errors within it, I am releasing a rebuttal to the report. The Rebuttal to the Report  corrects assumptions in Professor Natelson's report that assert  fiduciary law principles can be used to control an Article V Convention. My six  months of research leads me to believe fiduciary law principles, unless they are specifically expressed in the Constitution, have no place in constitutional law, let alone serving as the basis of regulation of an Article V Convention. The rebuttal uses historic records of the 1787 Federal Convention, (something not found in Professor Natelson's report) Supreme Court rulings and other relevant public records to demonstrate the Founders had at least two opportunities during their debates over the amendment process in the 1787 convention to introduce such fiduciary controls by the states into Article V. The Founders rejected these opportunities on all occasions and instead relied on other means to allow control of a convention. 

The rebuttal agrees with Professor Natelson on one central point. The rebuttal concludes the state legislatures may, if they wish, politically control convention proposal agenda in real time, that is, during the actual convention or, if the states wish, even before a convention occurs. Yet the rebuttal proposal simultaneously allows for a convention to freely discuss and propose whatever amendments it wishes if it is so politically inclined. The convention thus ceases being a figurehead convention as proposed by Professor Natelson and is free to be the constitutional think tank intended by the Founders with full, open, public participation of the people rather than being prone to a pre-determined political outcome controlled by special interests. Unlike Professor Natelson's report, the rebuttal proposal employs Supreme Court rulings as its basis of support. In sum, while the rebuttal proves the method of convention control proposed by Professor Natelson is constitutionally, legally and politically unfeasible, it offers an alterative which satisfies all of these criteria. 

I believe this proposal completely eliminates the last argument of those opponents who support Congress' ability to veto the Constitution and not call the convention when it is required to do so. The proposal advances a political solution, long argued as impossible by convention opponents. The proposal is based on solid constitutional grounds. Combined with other answers that FOAVC and others have advanced in the past few years, the questions to the "how" phase of an Article V Convention have been answered. Thus, there is no basis on which to object to a convention as the overreaching argument that operational questions have no answer is incorrect. 

Thus, with the release of this rebuttal, the issue shifts to the third phase of an Article V Convention call--the "when" stage. "When" will political pressure be brought upon Congress to compel it to do its required duty and call an Article V Convention. 

If you will consider reading this report and passing its contents to as many people as you know that are interested in Article V Convention or have questions regarding it, it would be appreciated. Thank you for your time. 

Bill Walker
FOAVC Co-Founder


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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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