Recent Email Exchange

The following email from Dan Marks was August 27, 2014, began an exchange between Harvard professors and think tank lawyers concerning the convention clause of Article V of the Constitution: 2/3 states cast applications, the legislative branch issues the call to convention, a non-binding deliberative assembly, a national town hall dependent upon agreement by 75% of the entire society.

Dan Marks: Aloha, this simple measure for an official public record of Article V applications was approved with a voice vote in both houses.

<http://www.legislature.idaho.gov/legislation/2014/SJM104.htm >

It was obvious to Idaho this needs to be done.  Other states will find it easy to support this too. Article V advocates should support this request and express it. It won’t take too many states to get all of them to demand this record. It is fundamental to our efforts.

Rob Natelson: Thanks, Dan.

John De Herrera: In other words, should Congress begin counting the applications as discovered by FOAVC, they will quickly find the call is overdue. For those still on the fence or afraid of convoking an open convention, please try to understand at last: the only thing on the other side of the call is the people of this huge, regional country building consensus and finding common ground--it’s consensus or no consensus, nothing more. There is no reason for a limited convention, in fact doing so would violate another person's rights to discuss what they feel important, the states have satisfied the clause long ago. This is the argument some have been making for awhile and we encourage you to join us. This would include partisan groups redirecting their message, including text from Idaho into their social media, and explaining what it means: that other people are unafraid of finding out which ideas garner the approval of seventy-five percent.

Curtis Olafson: Dan, et al, it is time for some straight talk amongst those of us who are Article V advocates.  This is a meaningless resolution that will face the same fate as all other resolutions “urging Congress” to take some type of action.  In Washington, DC, they have machines to deal with these resolutions.  They are called paper shredders.  Congress ignores these resolutions.  They receive hundreds, if not thousands, of them every year.  I know from extensive experience that many state legislators love to thump their chests in self-admiration after successfully passing resolutions “urging Congress” to take some type of action.   It is a complete waste of their time and that of their colleagues. The only resolutions that have any meaning are properly drafted resolutions that constitute a genuine application for an Article V amendments convention.  For Idaho of all states to pass this and to then be featured as an example of a state we should follow is laughable.  It is highly unlikely that a genuine Article V application would ever pass in Idaho in today’s political climate in that state.  It is a stronghold for the JBS and the EF.  To the best of my knowledge, Idaho legislators have not shown any broad-based support for using the state-initiated Article V process. Congress is not our adversary. The JBS and the EF and their allies are our adversaries. If the Idaho legislature wants to do something noteworthy, they can pass an Article V application for “a Convention for proposing Amendments.” If they have passed one recently, I stand to be corrected and educated. 

John De Herrera: We know thousands of resolutions are dismissed by Congress. The point is not to say, "Look at this resolution, let's hope they act." The point is to say, "Look--others aware of the objective solution, unafraid, and inquiring where things stand." This isn't laughable, it's a specific point of information that can be used to open conversation, because it's not the resolution that is going to work, it's the talk about it that works. Also, if Idaho is stronghold of JBS/EF how is it they're drafting a resolution requesting an official count? If Congress doesn't make official count, then indeed it is the adversary.

Dan Marks: Aloha, FYI, Idaho has applied for convention 10 times, most recently in 1989 for BBA. Of course, we would all know that if Congress maintained a record of the Article V applications of the states in a form that is open and accessible to the people of the United States.

David Biddulph: Fivers, Idaho rescinded its BBA Application as did: MT, ND, SD, WY, UT, AZ, SC, VA, OR & OK. The following states rescinded their BBA applications and recently re-applied: NH, TN, GA, AL, LA.  So if the remaining 11 “rescinders” re-applied, we would have 35 BBA Applications.

Dan Marks: Aloha, here is a count, by someone in Congress, in 1981 with 33 states applying for BBA between 1975 and 1980, in 1983 AK applied to make it 34. FL started rescinding applications in 1988. 34 applications with the same subject in 8 years did not trigger a convention. This Congressional Record entry is very interesting, who counted, why are they no longer counting, why was the period for 5 years only, why didn't Congress call with 34 same subject applications that it had acknowledged, etc? There is a fascinating story behind this and it doesn't make things more clear, it makes things more confusing. It could be that Judge Brennan is correct, Congress will never call under any circumstances. Same subject in a short period doesn't do the trick. Must they all be from the same year? The standard is not clear at all. Feedback appreciated. 

Tom Brennan: Dan, much as I admire the effort of David Biddulph and others to gather up 34 contemporaneous petitions dealing with the same subject, I have to repeat the obvious refrain: 1) The stated purpose of the Article V Convention is to generate amendments which are not favored by Congress. 2) Congress will not cooperate with an effort to obtain an amendment which they do not favor. 3) Therefore,  Congress won’t count them, won’t concede their validity, won’t ever voluntarily call a convention for any reason at any time. 4) Congress will always engage in the what Russell Caplan called “the politics of uncertainty,” insisting that a convention can always “run away” even if they try to limit it. If the United States Supreme Court were to pronounce authoritatively that an Article V convention can set its own agenda, and cannot be limited either by Congress or by the State Legislatures, how many of the current Article V proponents would become opponents? All those would believe that the American people are still capable of self governance, kindly raise your right hands.

John De Herrera: The only reason Congress has yet to call is because the people who think they know what a convention is are wrong, i.e. JBS/conservatives afraid of George Soros on the one hand, liberals afraid of the Koch brothers on the other. The Congress will call it as soon as enough want it. That's where some on this list are supposed to lead--not by unnecessarily frightening people into believing we need to twist the Constitution into a pretzel in order that a convention be safe--but to simply say what is: the states have satisfied the clause long ago, there's nothing dangerous about building broad consensus, and we'll have our government back under control the moment enough of us want it. As far as the American people being capable, I raise my right hand. We have thousands and thousands of individuals who would make for outstanding delegations.

Rob Natelson: Dan, I don't know about this count, but I know that congressional counts are notoriously unreliable. For example, the CRS study issued in 2012 purported to give a count of the number of BBA applications, and it was something like eight years out-of-date, not counting any intervening applications or any intervening rescissions. The states and Article V activists have to do our own counts and when we hit 34 on a topic, present it to Congress and go to court if necessary. Congress has absolutely no incentive to maintain reliable counts on its own.

Byron De Lear: And, of course, when the threshold is met again, courts will ultimately cite political question doctrine and punt. Evidently, SCOTUS is perfectly willing to adjudicate on products rolling out of Congress, but consider it overreaching to order them to do their job, which is “call a convention.” 

Rob Natelson: Byron, I don't want to get into a big debate about this issue again, but suffice to say there is little evidence that "courts will ultimately cite [the] political question doctrine and punt."  They have long put behind them the 4-judge concurring opinion in Coleman v. Miller (1939), and they have regularly adjudicated Article V cases both before and since. No one can say for certain what they will do in the future, and I would not (as you did) make a categorical prediction, but the odds are against them just "punting."

Byron De Lear: Well, I would hope they would look at the violation in law and act. But, sadly, in many cases the courts are just as “political” as the other branches—issues before SCOTUS many times has fallen the way political winds are blowing, which is to say, seemingly following partisan inclinations rather than law. Of course, the product is dressed up nicely with justifications and legal rationale adorning the opinion(s). My sense is that only a popular movement around the AVC shifting the court of popular opinion, if you will indulge me, and banging on the door of Congress (and, in essence, the courts) will succeed at either coercing SCOTUS to order Congress to call, or making Congress itself issue the call. The cynical side of me sees SCOTUS punting and citing political question as they don’t want to tell Congress to do something, separation of powers and so on. If I understand correctly, this is what transpired with Walker v. Members of Congress.  

Bill Walker: David, I’m curious. Can you please cite me the court ruling or federal law or statement by the Founders that allows states to rescind applications already submitted to Congress? Thank you.

Chip DeMoss: Compact for America’s position on Bill Walker’s question: At CFA, we have been advised by legal counsel and have come to understand that the Tenth Amendment would be controlling in this and many other Article V situations.  In this specific instance, since the power to rescind an application was not delegated to the United States by the Constitution, nor prohibited by it to the States, such a power to rescind an application is reserved to the States respectively, or to the people.  Accordingly, we at CFA respectfully believe that rescissions of applications by state legislatures should be honored.

Bill Walker: In 1981 when this was asked for, there was a push by several senators for laws to regulate a convention. This was part of that push. Dirksen was behind it if I recall. Anyway, there were several committee meetings, proposals and so forth, none of which ever produced anything. The ABA report was out and as demonstrated by its count, it was obvious to all a convention was due. However, as always Congress simply avoided the issue primarily because as Dan pointed out the terms of a call were never legally defined—until the Walker lawsuits. Of course the obvious conclusion given the esteem of ABA is Congress failed to heed their “advice” which of course was “same subject.” Little wonder in that the ABA advocated “same subject” then when it discovered enough applications existed in the 70’s to cause a call had to backtrack on their own assertion in their report.  I know many in this group pooh-pooh my work. But the simple fact is before these lawsuits no one had ever bothered to actually cause Congress to set terms and conditions of a call or at least state what they were. So, why no call then? Because nobody actually ever asked that one be made such as Dan and I asked. The fact is that there is no record that Dirksen or anyone else in Congress actually ever requested Congress count the applications. As to same subject being satisfied. I suggest all take a look at the now 758 applications from 49 states, move away from balanced budget and start reading on repeal of federal income tax. You’ll find that subject (spelled out in those terms as there is no other way to phrase the action of repeal of the 16th amendment but use the term repeal) has 38 states behind it. (Remember those who advocate same subject have to include the general applications made by states with no subject meaning they support all issues proposed together with any specific subject proposed). I would suggest that it would be to everyone’s advantage to seriously consider the only position the government has ever publicly advocated both in court and in their public record as the correct one. A numeric count of applying states with no terms and conditions. I know people cringe at this because of the lack of political advantage the position offers for their own political positions and agendas. But sooner or later people are going to have to decide—do you want a convention and have the chance to get your agenda passed or not have one and have no chance. Congress says through their official lawyer it’s a numeric count with no terms or conditions. What the hell—you’ve tried same subject with no result or reaction from Congress. What d’ya got to lose? Congress says there’s 34 balanced budget applications, not 24. So take them at their word. You got a problem with picking up applications in your favor for nothing? Congress has never recognized a single rescission for any application from any state. Don’t you think that if they were going to use this they would have already? Seems therefore Congress doesn’t recognize rescissions. Okay, take them at their word. You can’t rescind applications. Fine. Just more in your favor. Don’t want to do it? Fine. Slough your way through state after state trying to hold on to what you’ve already done while the JBS is busy undoing your work behind you. Basically keep chasing your tail, getting more applications and never getting a convention. Be my guest. But please don’t tell me Congress doesn’t want to call. The only two people who have ever actually formally asked them for a count is me and Dan Marks. I got my response from their lawyer. Dan was told “we’re working on it” by legal counsel of the House of Representatives. Both lawyers had ample opportunity (not to mention favorable court rulings) permitting them to simply say “we control the entire amendment process and simply are not going to call a convention.” Nobody has ever said to either  Dan or me, “we don’t want to count.” Until Congress actually says to the contrary I say give them the benefit of the doubt. The time will come soon enough when all their choices will come to an end. Chip, you don’t read your Tenth Amendment very well do you. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States…” (Tenth Amendment). Note the part about “powers…delegated to the United States by the Constitution.” Most Tenth Amendment types get this wrong they ignore that part and only concentrate on the states having authority. Anyway. Article I, Section 5, Clause 3. “Each House shall keep a Journal of its Proceedings, and from time to time publish the same excepting Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on an questions shall, at the Desire of one fifth of those Present, be entered on the Journal.” The Journal referred to is now known as the Congressional Record the keeping of which and requirement to keep is a “power delegated to the United States by the Constitution.” Applications since 1789 have been filed in the Congressional Record or its equivalent. This is not an accident. It was done by vote of Congress and has been followed continually since for all applications. I suggest you go to the discussion following the first Virginia application of 1789 and read it for details and a description by the members of Congress (which included James Madison who wrote Article V in the convention) where it states Congress cannot refuse to call, it’s a numeric count and so forth). One of the terms is all applications are on the table which in parliamentary rules (again granted to Congress by the Constitution) the applications cannot be acted upon and remain in full effect until taken off the table when “a sufficient number of applications shall cause a call” (or words to that effect). So applications are protected from nullification by the states by both the Tenth Amendment and Article I, Section 4, Clause 2…”Each House shall set its own rules…” This includes parliamentary procedures. Thus under the terms of the Tenth Amendment entries in the Congressional Record cannot be nullified by the states nor can the states control powers delegated to the United States by the Constitution. The call is a power delegated (under strict numeric count causing Congress to act with no other option which is why it is described with the only legal term reference by the Founders—peremptory) to the United States (Congress) by the Constitution. True, the states voluntarily control if there will be applications submitted. But once done, the matter is automatic in so far as Congress and the Tenth Amendment is concerned. Further the courts have long since ruled repeatedly states cannot nullify federal record. Hence Congress cannot nullify these records (that is act upon a request for nullification) because the matter is peremptory (if you don’t know what the word means look it up) and if Congress could nullify it follows it not only could nullify state applications requested to be nullified but others as well making the entire application process entirely controlled by Congress. However there is a light at the tunnel for you. If you subscribe to the authority granted Congress in Coleman v Miller which Congress has thus far rejected (if you read my suits you’ll find at District court it was granted but rejected by the government at the Supreme Court ) which grants Congress “total” control of the amendment process with the right to militarily remove state legislatures, create states into military districts and pass whatever “ratification” vote Congress wishes under the authority of the political question doctrine. The states are, under the terms of Coleman, cut out entirely from the amendment process. I assume you do favor Congress having such authority since you’ve indicated as such by the fact you belong to COS. In order for Congress to pass your position in a compact it must have the authority of Coleman as Article V does not grant such authority. Appreciate but cannot support your point of view. I think I want to keep this democracy.

Rob Natelson: If Judge Brennan is correct and Congress refused to issue a call when the states assertively presented it with 34+ clearly-valid applications on a given topic; or if Congress did issue a call with unacceptable conditions, then the next step would be the courts and immediately-ensuing election. If the courts refused to intervene and/or there were not sufficient changes in Congress to get it to change its position, we then would be in a genuine constitutional crisis. Obviously, one cannot know what would happen in such a crisis. One possibility would be for the states to call a true constitutional convention, and make changes to the system that way. That would be, of course, an extra-constitutional step. But we have an obligation, as Madison pointed out when opposing nullification in favor of Article V, to always try constitutional measures before resorting to extra-constitutional ones. Judge Brennan's scenario is plausible, but as someone who spent many years in practical politics, I take comfort from my own political judgment that Congress probably will not force us into such a position. Congress would have much more to lose from doing so than the possibility that a convention might propose some relatively-moderate curb on its power.

David Guldenschuh: If Idaho wants a count, why not have their legislature or attorney general file suit demanding a convention now asserting as Bill Walker did in his suit that the requisite number has already been met? I think it is far more likely that a court will grant standing to a state lawsuit than a private citizen’s. That would force Congress to respond either with a count or fight the suit. In either case, we might get some clarification from the courts on the appropriate standard before we reach the point of a constitutional crisis. What are the legal scholar’s opinions on the standing of a single state or legislator from a state to file suit demanding Congress to call a convention now taking the position that aggregation of topics is unnecessary, only the total number of applications? As has been pointed out to me, while the States have standing, Idaho has rescinded all of its applications. We have some strong Article V advocates here in Georgia, including several legislators. Our Attorney General has been very aggressive in legally challenging Washington’s overreach. I was very active in Georgia’s passage of the BBA, COS and CFA resolutions/bills during the 2014 session and have strong relationships with the legislators. What is the feeling of the group about my approaching one or more of them to consider such a suit? Are there other legislators in other states than any of you know of who might be willing to join in? Should this item possibly be addressed by the Assembly of State Legislators? Just positing some food for thought . . .

Chip DeMoss: Dan, there are a few problems in simply referring to the listing of potential applications in your attachment.  Take the BBA application from the state of Texas for instance.  Note that there is no reference to a specific state resolution (application) that can be referred to for details.  The only information on the list is that on August 15, 1978, the Secretary of the Senate received what may he/she deemed an application from the State of Texas that somehow related to a balanced budget.  Without reference to a specific resolution/application, there is no way to know the details of the request for relief in the application that was made by the State of Texas.  The request could have conditions contained in it that would preclude it from being aggregated with other applications.  For example, the resolution/application could require specific amendment language that is different from that contained in other applications, could have specific amendment scope limitations that are different from that of other applications, could have an exclusive purpose requirement, could have a time limitation, could provide for alternative options by Congress before the application would go live, etc.  All of these factors would have to be known to fully address whether such a state application can be aggregated with those from other states. Fortunately, the Assembly of State Legislatures (“ASL”) (formerly the Mount Vernon Assembly) is looking into this question as we speak.  A subcommittee has been assigned the responsibility to look at the existing state applications to determine the proper count for the various desired amendments.  The BBA applications are likely at the top of their list.  Rep. Andy Welsh from the State of Georgia is the chairman of the Judiciary Subcommittee that is addressing this situation.  One of the first things his committee is pursuing it the attempt to locate the original state resolutions/applications that were submitted to Congress.  If the original documents can be located from the respective state houses, then the applications can be further analyzed to determine the proper aggregation bucket in which they would belong.  I understand his committee will also be attempting to determine if the applications are still considered valid by the respective state legislatures and have not been previously rescinded.  We at CFA believe that the states should take initial responsibility for the counts, and then make their case to Congress in an orderly fashion.  This appears to be the goal and objective of this particular ASL subcommittee.  Accordingly, we are assisting Rep. Welsh wherever possible in this effort and are looking forward to his committee’s findings. 

Dan Marks: I don't see how anyone can sue if there is no official count. I count more than 34 of the same subject for more than one subject, BBA, 17th amendment, repeal of 16th. I don't see the difference in 34 new ones. That is the present condition, not something over the horizon.  How do we go forward without any official count when past efforts also failed to get a response?

John De Herrera: For anyone confused by what Chip said about no way of knowing the details of the request in application by Texas: terms/conditions for applications do not exist in the Constitution because the spirit of the law was to prevent lawyers from advising and Congress from playing dumb. That means what Texas was referring to at that time, and what every other state has referred to in 750+ applications on record, is legally irrelevant. If the groups/people on this list merged behind the truth, that the Constitution and its records mandate the call, we could get it this year. Time to break the status quo so it can be reformed.

Bill Walker: Allow me to quote from two sources: The FOAVC website and the Oyez Project from the Chicago-Kent School of Law. First FOAVC: The following quotes are pertinent excerpts from Coleman v. Miller in which the Supreme Court gave “exclusive”, “sole and complete control over the amending process” to Congress. Significantly, the Supreme Court referred to the amendment process <http://www.foa5c.org/file.php/1/Articles/Process.htm>  as opposed to an amendment proposal <http://www.foa5c.org/file.php/1/Articles/Proposal.htm>  i.e., an amendment proposal originated in Congress and, until voted out of Congress, entirely within the “control” of Congress. The term “process <http://www.foa5c.org/file.php/1/Articles/Process.htm> ” however includes all aspects of Article V. In the Walker lawsuits, the courts extended this “control” to include the Article V Convention thus rewriting the Constitution by creating a single amendment process<http://www.foa5c.org/file.php/1/Articles/Process.htm>  controlled entirely by Congress. The Constitution does not grant the Supreme Court the authority to rewrite the Constitution. "The Constitution grants Congress exclusive power to control submission of constitutional amendments. ..." The Court here treats the amending process of the Constitution in some respects as a subject to judicial construction, in others as subject to the final authority of Congress. There is no disapproval of the conclusion arrived at in Dillon v. Glass, that the Constitution impliedly requires that a properly submitted amendment must die unless ratified with a 'reasonable time.' Nor does the Court now disapprove of its prior assumption of power to make such a pronouncement. And it is not made clear that only Congress has constitutional power to determine if there is any such implication in Article V of the Constitution. On the other hand, the Court's opinion declares that Congress has the exclusive power to decide the 'political questions' of whether a State whose legislature has once acted upon a proposed amendment may subsequently reverse its position, and whether, in the circumstances of such a case as this, an amendment is dead because an 'unreasonable' time has elapsed. Such division between the political and judicial branches of the government is made by Article V which grants power over the amending of the Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively and completely to Congress. The process itself is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or inference at any point. Since Congress has sole and complete control over the amending process, subject to no judicial review, the views of any court upon this process cannot be binding upon Congress, and insofar as Dillon v. Glass, supra, attempts judicially to impose a limitation upon the right of Congress to determine final adoption of an amendment, its should be disapproved." Congress, possessing exclusive power over the amending process, cannot be bound by and is under no duty to accept the pronouncements upon that exclusive power by this Court... Neither State nor federal court can review that power. Therefore, any judicial expression amounting to more than mere acknowledgment of exclusive Congressional power over the political process of amendment is a mere admonition to the Congress in the nature of an advisory opinion, given wholly without constitutional authority." Note the last paragraph. Congress possessing exclusive power over the amending PROCESS cannot be bound by and is under no duty to accept the pronouncements upon that exclusive power by this Court” followed by “any judicial expression…[is] an advisory opinion…” Answer why a court case won’t work either with the states or a citizen (unless of course the government agrees and ignores Coleman which is what it did in Walker) Oh yeah and don’t forget the military overthrow of state legislatures also authorized in Coleman in order to achieve ratification. I’d say that pretty well sets where the court holds the states are in all of this. And the quote from the school of law: Facts of the Case: In June 1924 the Child Labor Amendment passed both houses of Congress. Under Article V of the Constitution, three-fourths of state legislatures must ratify an amendment passed by Congress before it becomes part of the Constitution. Initially, the Kansas state legislature rejected the amendment, but in January 1937 it was reintroduced before the state senate. Of forty state senators, twenty voted for the amendment and twenty against it. Under Kansas law this left the deciding vote to the lieutenant governor in his capacity as presiding officer of the senate, who voted in favor of passage. After subsequent passage by the Kansas state house, Rolla W. Coleman, a state senator and twenty-three other members of the Kansas legislature filed suit against Clarence W. Miller, the secretary of the state senate challenging the constitutionality of Kansas' ratification process. Further, they claimed that by 1937, thirteen years after Congress initially proposed it, the amendment had "lost vitality" and could no longer be considered. Question: Did the participation of the lieutenant governor, the prior rejection by the Kansas state legislature, or the length of time between the proposal and ratification of the Child Labor Amendment conflict with the ratification process laid out by Article V of the U.S. Constitution? Conclusion: The Court's 7-2 decision addressed primarily the prior rejection and the length of time between proposal and ratification, and found this question nonjusticiable, meaning it was not the function of the Court to decide the matter. The majority opinion, authored by Chief Justice Charles Evans Hughes, described the question as inherently political, analogous to its 1849 decision in Luther v. Borden, and noted that no legal criteria exists for its determination. Thus, the Court reasoned, Congress alone has authority to decide. The Court also chose not to address the participation of the lieutenant governor, describing itself as "equally divided" on the matter. Now I’m not here to get into a great big discussion about Coleman. But Oyez is correct Coleman is a 7-2 decision. They used apparently the same logic (and it is a challenge) to reason out the decision was 7-2 not an apparently 3-4-2 decision as everyone usually assumes. Once given, the authority, or should I say lack of authority, must be returned by Congress to the courts. If not, Congress simply says the decision of the court is advisory. The only way the court could assert otherwise would be to reference an act on the part of Congress in which it had already acknowledged that such assertion had already been accepted by Congress and the court was therefore acting upon that already expressed premise. The only possible example therefore is the Walker lawsuits which most of you pooh-pooh as meaningless. Still think they are given all your work hangs on those admissions being the policy of Congress and if not, then Coleman prevails meaning all your work is for nothing. If so I point out if Congress controls exclusively instead as admitted in Walker then there is no basis for standing by the state because Congress exclusively controls the process meaning the states have no place in the matter. The only solution out of this Gordian knot is what I have said all along but which, as usual is ignored because I don’t have a degree in law. True, but I do have a degree in lawsuit against the government and that degree includes discussing the issue with top government (and I emphasize top) on the matter. The solution: Walker states the call is peremptory. Thus Congress, as stated in the decision, must obey the Constitution meaning they must call but with no terms or conditions since other than the two thirds there is none in the Constitution and second, it is a criminal violation of law not to do so. The government agreed to both conditions as well as others. The work of John Guise is what is making this happen. BTW—peremptory means no rescissions and so forth. You can’t say the call is peremptory on Congress then simultaneously assert the states have the right to present conditions to Congress which it must act upon thus giving it choice and hence making the matter non-peremptory. Either Congress must call or it doesn’t have to. So from your points of view—either you must demand a convention call, period, or keep your points of view on conditions, circumstances, pre-conditions and so on and accept that Congress has the same “right” as you assert. Make up your minds. Of course most pooh-pooh Walker. So I suggest you figure out your own sword to cut the knot if you don’t like mine. Just remember you can’t use the courts to do so. That door closed in 1939—except for Walker of course which you reject.

Gordie Hayduk: Bill and Article V Advocates, I believe Bill Walker.  Instead of just talking and writing about what Walker has to say, let's gather the lawyers that have standing and sue.  And make it a real public affair.  If a focused website needs to be built, I can do that or help.  If promotional materials are needed, I can do that or help.  If funds need to be raised, I can build that mechanism into a non-profit public benefit (education) corporation so financial contributors can get a tax-deduction. We Article V Advocates need to become the biggest pain in the gluteus maximus for Congress and the Supreme Court — test every potential avenue to reset and secure democracy.  What say you one, what say you all?

Nick Dranias: Guys, Bill is not an attorney. He is using rulings reached in the narrow context of ratification referal and recognition to make claims about the entire Article V process. But the entire Article V process was not at issue in these cases and congress' power outside of the ratification context was not determinative. It would not be reasonable to construe any statement in any court decision that addresses uncontested and nondeterminative issues as a binding ruling. Such statements are dicta, at best, or simply wrongly interpreted outside of the context in which they were made (often courts make broad statements assuming the readers of their decisions are aware that what they say simply applies to the case and issues before them). If you do not keep these legal principles in mind, you can easily cherry pick broad and sweeping rhetorical flourishes from cases to create the appearance of rulings that were never actually made or, if made, are not binding. This is a fairly typical lay person mistake. I would not premise a lawsuit it such mistakes. Nick

Lawrence Lessig: Nick, of course, is right.

Bill Walker: Unfortunately you gentlemen forget the Solicitor General of the United States who was an attorney, represented Congress and was required by federal law to dispute any assertion of fact and law regarding the case specifically involving the legal area of an Article V Convention. Under the law if I were incorrect as to my statements either with fact or law, he was mandated to bring them to the attention of the Supreme Court. You also neglect to mention or account for the fact that in U.S. v Sprague the court include both the proposal process and the ratification process in its ruling, not as dicta but as part of the decision. It declared (without asterisk) that there was no “rules of construction, interpolation or addition.” It did not say “except in the case of a convention where this decision does not apply. It did not say “Congress has control of the ratification process but in the convention process is controlled by amendment subject, contemporaneous ad nausium and whatever else the world can come up with.” Instead in Sprague “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses; or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them.” Now in my lawsuit, the only one so far presented to the government where the government was given the opportunity to officially respond to the “ideas” of those who say they know so much but are unwilling to test them in a court of law, I asserted Sprague just like above. The Solicitor General agreed meaning that his position of 2006 and 1931 had not altered that is to say the position of the United States had not changed. Clearly if the assortment by the United States was not that article 5 was clear in statement and meaning and contained no ambiguity and called for no resort to rules of construction when addressing an Article V Convention then this would be an alteration either of law or fact. The SG did not so assert. So until you go to court, face a federal judge and the SG and have them say officially that they renounce Sprague in favor of Coleman (since that is the only other ruling possible) the Sprague ruling and the acknowledgment of its extension to a convention remains. However I suggest you carefully consider as I have said, triumphantly proving me wrong. The alternative is Coleman and that emphatically says Congress controls all, not the states. Congress can remove state legislatures by military force to achieve a “ratification” vote and so forth. I suggest you think carefully about what you are asking for—you just might get it. Oh yeah and while you’re at it, please explain to me why the Legal Counsel for the House of Representatives didn’t assert Coleman or your positions when he easily could have done so and simply said “we’re not going to count.” Instead he comes up with the lame excuse—“we’ve never actually told anyone to do so.” The implication should be obvious to all—they are obligated to count. If so they obviously accept the premise of calling. Notice no mention is made anywhere in official Congressional responses or publications going back to the colonial days of anything but a simple numeric count. So if you’re so sure I’m on such narrow ground, fine. Now explain why my narrow shelf is crowded with the Solicitor General of the United States and the legal counsel of the House of Representatives both of whom are lawyers by the way. Oh yeah I forgot. You ignore these facts because only by suggesting “I” say them can you “refute” them. Time is ticking down gentlemen. The pedal is going to hit the metal. I’d like to see all these guys put their money where their mouths are. Nick recently mocked me saying the state of Texas of waiting to read my 1000 page brief. I’ll make my own statement. The state of Washington is waiting to read even a one word brief from anyone else. Please. Step forward. You are all lawyers. You know how to file suits. Be my guest. Until then please don’t tell me about lawsuits that you have no knowledge about. Did any of you ever think to consider that not all things about a lawsuit are just what you read in the record. Lawyers in any case on both sides and their clients talk to each other. So do lawyers and judges. You might consider that. And David, I think you should go ahead. However your state is somewhat handicapped. You’ve (the state) has joined the Compact of States so under the terms of that agreement you’ve forfeited any such right to a lawsuit. Read the fine print. Any legal disputes are settled in Texas. Hence the state of Georgia cannot file suit in its own district court because it’s not in Texas. So, sorry. Good idea but not possible.

Rob Natelson: On the constitutional question regarding Coleman, I agree that Professor Lessig and Mr. Dranias are correct. The four-judge "leave it all to Congress" concurrence in Coleman was never the opinion of the court, and the case's suggestions of non-justiciability have been widely repudiated in later decisions. This is true whatever perceptions Mr. Walker may have regarding his own pro se lawsuit.

Bill Walker: It was a 7-2 decision Rob. If you actually take time to read the decision you’ll see the three justices Hughes and so forth refer to the opinion as “the opinion of the court.” Now I know this may blow you away but even in 1939 Chief Justices of the Supreme Court who wrote opinions knew how to count to five. And even in those days Rob the rules mandated a majority of justices sign on to an opinion for there to be a “opinion of the court.” And even in those days Rob as is done now whenever justices agreed with the overall opinion of the court but for different reasons their concurrent opinion(s) became part of the “opinion of the court” meaning the opinion of the court (3 justices) and the two concurring opinions (4 justices) became the “opinion of the court.” I hope this math isn’t too high for you Rob but 3+4=7. There are even court rulings on this point Rob but you probably missed that day in law school. And while we’re at it--“Lawyer: A practitioner of law: one (as an attorney, counselor, solicitor, barrister, or advocate) whose profession is to conduct lawsuits for clients.” Webster’s Dictionary. So when you “lawyers” actually “practice” your profession and conduct a lawsuit then you have a right to instruct me about my lawsuit, its interpretation and so forth. Until then you are simply giving opinion, however learned, but nevertheless theories or personal opinions which have no place in a court of law. Courts deal in facts, evidence and law, period, not theory and they frown mightily if you attempt to win a case by running down the opposition instead of addressing the issue presented. So far as I can see when it comes to an Article V Convention, by definition I’m the only “lawyer” in the group. I’m the only one who has actually “conducted a lawsuit for clients” (myself) and remind all that under the law the fact that I was pro se makes no difference in the eyes of the court. I was held to the same standards, obligations and so forth as any lawyer coming before the court. (Says so right in the federal manual on filing pro se for a federal lawsuit). I assure you the federal government treated me that way. And finally this question—where were all you “lawyers” in the 1990’s through 2004 when I was begging, pleading, getting down on my knees for help and legal representation. All I got was bored yawns. So now it’s coming home to roost. What I warned about then was ignored. Now you all are screaming for a convention to fix what I saw coming in 1992. You all say you have the right solution and I don’t know anything. Funny thing. I seem to always be warning about situations years ahead of everyone else. If I’m so damn ignorant and uneducated how come I’m the only cutting ground. You want to lead? Grab a shovel and start digging. Anyone can tell someone how to dig a hole—it’s when they try it themselves you find out if they know what they are talking about. Come back to me when you’ve jumped out of my trench and start digging your own. This goes especially for you Rob and Nick. I’m sick and tired of you two demigods of law. If you’re so damn sure you are correct, find a client, file a lawsuit and prove it in a court of law. In fact I’m so pissed now I’m going to help you along. Nick I’m going to give you the chance to prove your case in a court of law. I’m sending a formal complaint to my US Attorney this week about Compact for America with a request it be forwarded to the appropriate US Attorney of Georgia and Alaska. I’m sure you realize a citizen of the United States can file a complaint with any US Attorney so state jurisdiction doesn’t matter. I’m going to bring to their attention the fact your compact has taken force without approval of Congress as mandated by the Constitution along with some other points. It is my believe based on my study of law that your organization has perpetrated a fraud on both the states and the United States and that’s a criminal offense Nick. I’m going to ask for an investigation by the US Attorney and FBI. Now you can come back to me all you want but I advise you to save it for the US Attorney. And by the way they got law degrees. So maybe they’ll act and maybe not. But I can guarantee you they’ll take a hell of a closer look at your legal arguments than 50,000 feet. And Rob same thing. The complaint will also discuss your “fiduciary” theory and the felony laws coming from it passed in state laws arresting people. Don’t bother talking to me Rob about you never advocated it. Save it for the US Attorney.

Nick Dranias: Bill is also mistaken about the compact's venue selection clause. It only applies to litigation concerning the compact-organized convention, nothing else.

Bill Walker: Nick, your compact language says “all” matters shall be decided in Texas thus denying the states the right of judicial review in the jurisdiction the state is entitled to have such review. The state therefore agrees to repeal of its right of judicial review which of course includes citizens of those two states. Don’t tell me, tell the US Attorney. Maybe he or she will buy your story.

Chip DeMoss: All, to further clarify the venue matter, the exact language in Article X of the Compact is as follows: “Section 4. The exclusive venue for all actions in any way arising under this Compact shall be in the United States District Court for the Northern District of Texas or the courts of the State of Texas within the jurisdictional boundaries of the foregoing district court.” The Compact is a binding contract among member states.  Accordingly, the venue provision contained therein can only apply to the contract itself, which is the interstate compact agreement known as the Compact for a Balanced Budget.  Attached a copy of the legislation package, including the Compact for a Balanced Budget (Alaska version) for all to review.  Let us know if you have any questions.

Byron De Lear: It’s difficult to imagine anyone from the mainstream of national leaders from the Blue Team joining in a politically one-sided AVC effort—for example the current approach by COS, ALEC, Compact, etc. That’s why I’ve repeatedly called for the Left and Right AVC folks to band together. That hasn’t happened yet. Primarily, because the transpartisan AVC movement would have to be open to explore progressive and conservative ideas for amendments. Since some of us have been and are in the business of making predictions about the U.S. political landscape, I predict that any modicum of momentum currently enjoyed by the COS / ALEC folks will hit a mighty brick wall once the effort(s) ping the Blue Team radar, so to speak. In that instance, we will be faced, as its been expressed before in this thread, with the necessity for political accommodation. That is, if we want to see the convention happen. To that end, here’s an abstract that shares some of the reasons why the left and right are sooo intransigent. I’ll make the argument that we, as AVC advocates, need to break these tendencies for polarization held by mainstream political actors and offer the nation something new and different. “Political compromise is difficult in American democracy even though no one doubts it is necessary. It is difficult for many reasons, including the recent increase in political polarization that has been widely criticized. We argue that the resistance to compromise cannot be fully appreciated without understanding its source in the democratic process itself, especially as conducted in the U.S. The incursion of campaigning into governing in American democracy--the so called "permanent campaign"--encourages political attitudes and arguments that make compromise more difficult. These constitute what we call the uncompromising mindset, characterized by politicians' standing on principle and mistrusting opponents. This mindset is conducive to campaigning, but not to governing, because it stands in the way of necessary change and thereby biases the democratic process in favor of the status quo. The uncompromising mindset can be kept in check by an opposite cluster of attitudes and arguments--the compromising mindset--that inclines politicians to adapt their principles and respect their opponents. This mindset is more appropriate for governing, because it enables politicians more readily to recognize and act on opportunities for desirable compromise.”

Nick Dranias: As I have always said to my friends on the Center-Left: Bring something to the table, don’t just bitch about things while the Center-Right does all the heavy lifting. I have no doubt principled compromises can be found. Here’s a few: An amendment making all federal officials literal fiduciaries for the American public. An amendment simultaneously repealing the 17th Amendment and empowering the states to determine whether to deviate from Citizens United for senatorial elections, to the extent they choose to retain them. A single subject rule amendment. I’m open to drafting discussions on all of these, and I would recommend a compact vehicle to accomplish the goal.

Byron De Lear: Nick, you're not seeing the forest for the trees---as I said to Huff Post last year, much of the activity for the AVC during the Bush years was on the left due to pushback on what was perceived as a President taking us into unnecessary wars and acting in an unconstitutional manner; unwarranted wire tapping, signing statements, torture, etc. Where were you in 2004 and 2005 when people didn't even use the term "Article V Convention" because it was called a "constitutional convention"? We established the new meme and frame. Where were you when FOAVC sponsored the most complete tabulation of state applications through a forensic study of the congressional record? --a task that should clearly be conducted by Congress-- FOAVC's role in this matter now cited by CRS, etc? We put our money on the table and moved the business forward as we best could effectuate that. Walker sued members of Congress for not issuing the call, where were you then? Doing other things I suppose. Currently, the animating animus for the AVC is derived from dislike toward President Obama, the Obama administration, etc.--- and, as is obvious, the energy is on the right. But you probably don't recognize any of the work conducted before you got involved. My suggestion, if we really want to see a convention,  is to open the framework up so the left and right AVC advocates can begin to work together. Passing ALEC, Compact, or COS based resolutions for an AVC will only politically hit a brick wall and is NOT representative of the left and right AVC advocates working together. Passing ALEC, Compact, or COS based resolutions for an AVC will only politically hit a brick wall and is representative of the left and right AVC advocates working together. But by all means keep throwing red meat to the tea party and libertarians---at some point, we will all be in the same room working together to get this done, unless, of course, you only want your own political peccadillos visited, which is what I suspect. I, on the other hand, see great value in conservative principles and ideology and support the BBA, for example. We need both sides for a robust country and politic.

Nick Dranias: Byron, I recognize the research value of the compilation of A5 applications and related resolutions/memorials at your site. But very candidly, I think everything else done by your group to develop the supposed legal framework of an A5 convention is completely wrong and, worse, a political disaster across the political spectrum. The problem is that the legal theory you guys pitch is exactly what John Birch Society and Larry Tribe need in A5 advocacy. The obviously counter-historical and clearly erroneous layperson’s insistence that an A5 convention MUST be a “black box” lollapalooza party populated by Congress that we have to organize in order to find out what it will propose is like the work of an arsonist with respect to everything the wider A5 movement is building. That being said, I don’t dislike you guys personally. I just shake my head in bewilderment.

Byron De Lear: IMHO, threatening dissenting delegates exercising free speech, etc.with a felony offense is far more bewildering. And FOAVC's position that the threshold has already been met and that the two classes of citizens capable of proposal---congress and convention--- should fall under equal protection of the 14th are hardly bewildering and unorthodox. Article 5 states convention to amendments--- does that little 's' really conjure visions of a "lollapalooza"--- really? Sounds like you're afraid of democracy. I'm not.

John De Herrera: Lincoln said it already, it doesn't matter what the USSC says, or the US Congress, or the CEO, it only matters what the People say. The US Government has a tiger by the tail in the People. Congress is refusing to count regarding the states' right to find common ground. Why not make that the message? In other words, we don't care how Congress counts them, whatever criteria they want, we just want to know where we stand. If everyone on this list stopped to think, "Ya know, we've been talking about this Article V thing for awhile...." Charles Kacprowicz who is on this list, has a reported 55,000 listeners to his calls in which he interviews state legislators: "Mr. Legislator do you think the Congress should count existing Article V applications?" If the groups represented here joined on the idea it's time for Congress to make a count, we'd could have the convention call this year. Larry, see if you can bend Maddow's ear again. She seemed pumped to hear about it a couple years ago. Tell her a guy from Hawaii just did something ingenious and historic, and even Idaho has now done it, and there's a movement to get Congress to count existing applications. The Idaho resolution sparked this exchange. Then someone said forget about it. Then someone said Congress will never call.... When Rob and Nick came onto the scene Nick chastised that in all the time FOAVC had been working on it nothing had been gained by the "shotgun" approach to applications. Yet new ones have been cast since we've been arguing this and they too have gone unacknowledged. Isn't that proof we need a count? What if this whole thing hinges on that critical distinction: instead of suing to call, as Walker did, suing to count. If anyone were going to do that Sandy, Larry, and Dan should. I can see it now, you guys on Bill Moyers talking about suing Congress to count the record--and after historic firsts of a citizen and state requesting Congress count. Get Brian Lamb on the phone. It's a great narrative. So there is no confusion, FOAVC is advocating for a convention of no terms or conditions other than those imposed on Congress, based on the constitutional principle that everyone has to be treated/protected equally under the law, whereas the conservatives, with terms and conditions, are twisting Article V into a cause for alarm, when an idea achieving super-majority in any society, at any time, is not, nor ever, a cause for alarm. It's how we were meant to exist, in fact. But late analysis, maybe it does come down to a lawsuit that Congress count. Wherever you are in the race, you should be in favor having Congress count. Maybe do a Martin Luther type thing and create a page, a list of signatories calling for an official count.

Rob Natelson: Dear Participants, I have to leave this thread, but before doing so I'd like to provide interested readers with information about the 1939 case of Coleman v. Miller, which I mentioned briefly and whose four-judge concurring opinion (written by Hugo Black) is sometimes cited for the claim that Congress has complete control over the amendment process. I've blogged on the case here, discussing what it did and didn't decide: http://constitution.i2i.org/2014/09/01/the-famous-case-of-coleman-v-miller-and-no-it-doesnt-give-congress-total-control-over-the-amendment-process/ <http://constitution.i2i.org/2014/09/01/the-famous-case-of-coleman-v-miller-and-no-it-doesnt-give-congress-total-control-over-the-amendment-process/>

One point of personal privilege: A participant in this thread suggested that I'm not really a lawyer because I'm just a legal scholar who never practiced law. That would be news to my former clients. Before entering academia I practiced for well over a decade, including a fair amount of litigation, and in two different states. So I have a pretty good sense of how the system works.

Nick Dranias: There are few things Rob hasn't done and doesn't know.

Bill Walker: Save it for the US Attorney Rob. Welcome to my world. I don’t talk. I act. From the moment I took up an AVC I never conceived anything else but a court case (an act). When I looked at a list of applications I never thought of anything else but a list of texts. I don’t talk Rob, I act. You’ll be back.

John De Herrera: Rob, before you go (which I don't know why you would need to, and hope you won't), do you think Congress should be made to count? Again, in the time we've been talking Article V (three/four years) new applications have gone unacknowledged. Instead of asking Congress to call a convention, let's request it account for what applications, in what categories, according to its criteria, are currently valid. If we can't get that done it's like idling in a driveway, talking about where to go, while the rear axle is jacked up on cinderblocks. One way to persuade Congress would be a page of signatories posted to the Internet. Gordie Hayduk and I are taking on the task, so if you're on this email and don't want your name/organization listed, let us know, otherwise we'll assume you agree it's time the count be made. Other than that we hope someone files pro bono writ seeking an accounting. It would probably assure you a seat at the convention should that action be the one that does the trick.

David Guldenschuh: John, as the de facto facilitator of the "Article V Coalition" who has had multiple private communications with individuals within our loosely organized discussion group, I can assure you that it would be inaccurate for you to assume that everyone in the group concurs that Congress should engage in a count. I applaud you and Gordie for setting up an online petition to Congress, but I strongly urge you not to assume that everyone concurs and to only list those in this discussion thread who unequivocally give you permission to do so in advance.

John De Herrera: Is anyone here against a count?

Mark Meckler: John, while I appreciate all efforts on behalf of Article V advocates, I don't think it's appropriate to list everyone without an affirmative request by them to do so.  I am not interested in "asking" Congress for a count of anything.  Our organization's posture is that we don't need them to make the call, nor to tell us when we have reached the aggregation threshold.   The right to hold a convention is a retained right of sovereign states.  When we have 34 calls which "clearly" aggregate, we will hold the Convention, with or without a call by Congress.  Some of the efforts represented here, like Nick, will not have a problem with the issue of aggregation when they get to 34. From my perspective, we don't want to come at Congress asking for anything.  We don't need them to operate a Convention under Article V, and I don't wish to give them the idea that we believe that we do.

Curtis Olafson: John, David F. Guldenschuh has given you wise advice and counsel. I would refer back to my original post in this thread regarding state legislatures passing meaningless resolutions "urging Congress" to take some particular action.  A "page of signatories posted to the Internet" will be similarly ignored by Congress, no matter how illustrious the names.  You could not assemble a more illustrious list of names than those included on this thread, and I am honored to be included in this discussion group.  And yet, sadly, a petition signed by all of these learned people will, in my opinion and experience, be ignored by Congress.  State legislators have the power wisely provided to We the People by our Founding Fathers.  Focus on state legislators, not on Congress.        

John De Herrera: Mark, Curtis, you're right, let's not request or urge anything, let the list simply be witness that we know what's going on, thus allowing for fellow Americans to become aware of what's going on.

Mark Meckler: John, just to clarify for COS; please do not list me or our organization, and I think it would be wise and appropriately deferential to all in this thread not to list anyone that hasn't specifically asked to be listed.  Just my two cents (which are worth less than they used to be).

Bill Walker: Just for the record. Two requests (with applications attached) have, within the last year, already been submitted to Congress, one from Dan Marks, the other from John Guise. Both have been noted in the Congressional Record. Both have been referred to committee. Both, in so far as can be determined, are being acted upon. I remind all that an accurate count of all applications ever submitted by the states, written by the states and so forth throughout 230 years+ history is not, for the government, an overnight matter. All documentation, under the requirement of federal law (which provides criminal penalties for violation thereof) must be authenticated, verified and so forth before any official count can occur. Having been the only person up to now actually involved in putting together such a list I can tell you from experience it is not a simple procedure despite what anyone may think. Now there have been, so far as I can determine, at least three counts of applications officially by Congress since 1900. All showed the same result: sufficient applications for a convention call. The first came in 1911, the second 1930, the last Dan Marks noted last week. Despite this Congress failed to act. However I emphasize that until Dan Marks actually submitted his letter nobody had ever asked Congress to count. There is a technical difference but an important one between asking what is the count and will you count applications. Dan and John have asked for both. The set of circumstances used to judge the three previous counts were identical: a list of applications listing no terms or conditions for that count. Instead a numeric total was the only criteria. As I have noted under Rule 2 of the House rules, the Speaker can required of the Clerk of the House any report he desires to have created. Moreover the Clerk is authorized under Rule7 to have access to all records of the committees which in this case is the committee on the judiciary where all records of applications have been stored since May 4, 1789. However research done several years ago indicates these records have not been separated by subject from all other material received. This literally means that the staff at the House in addition to their other duties is being required to go through every single page of record ever received by Congress to tabulate this record not to mention comparing it with the Senate and finally, of course, verifying with each state the authenticity of the record (along with determining any missing records from the state). Now I believe the matter is already underway. I base this assumption on the fact the Speaker referred the matter of Dan Marks’ letter to the committee (which means it also went to the Clerk) rather than the usual procedure of notation without involvement of the speaker. In addition the CRS has been very busy writing more reports in the last year on a convention than it has in the last two decades. These reports are made by requests by members of Congress not because the author feels like writing something. Therefore it is clear something official is going on and the only thing officially asked is a count. I advise patience and persistence. Working on the state legislatures is a not viable. They have done the job. The only viable effort is to direct pressure at Congress. As to the text of the applications and their subject. They all contain the exact same language. I know I’ve read it: all ask for a convention call under the authority of Article V. I remind all, as I have in the past several times: the applications are intended to be acted upon by the convention, not Congress. Therefore constitutionally the only matter that concerns Congress is the fact the application calls for a convention, not the subject of the application which is the business of the convention. The subject matter of an amendment proposal shall have no bearing on the amendment process. Leser, Sprague. Yeah, yeah I know everybody will say it only deals with ratification but that’s not what the court said. If amendment subject did effect the process the court would be bound to so state. It did not.

Dan Marks: Aloha Mark, I think the COS application with aggregate with the Texas 1899 application and many others.  I don’t see the COS resolution as a problem or too restrictive. It seems to define what a convention is rather than limit what it does.  I think if we had an official count, it would save everyone a lot of money, time, and effort. If those are not an issue, more power to you, but I think it is a practical matter too. States have counted these applications in the past and it did not get a convention going. WI, UT, WY all included counts in their applications that exceeded the 2/3rds threshold.  If we can move forward without Congress when you have 34, why not move forward now because of previous counts by states and the latest claim by Michigan that they are the 34th state? Judge Brennan wants to host an event, a rump convention, to propose amendments. I think we should agree to play nice and cooperate in that event. It will calm fears of convention in general and it just might work like he hopes. Either way I don’t see much downside to assembling and proposing. You would certainly be able to continue your application efforts regardless of participation. This group hasn’t agreed on much so far. That is fine, but we could agree to being a debate that no one has the power to stop.  We definitely don’t need permission for that. A “pre-season match-up” might be a good thing. Let’s invite Joe Wolverton to propose a nullification amendment. I spoke with him, he would love to debate it. Getting the JBS in the convention they are supposed to be against would be a small victory for us. So, let’s put the counting issue aside for a moment and discuss if we should assemble without Congress’ call or not as Mark suggests. The downside I see with that is the possibility that a challenge to a ratified amendment in SCOTUS could create a larger crisis than the one the amendment tried to cure. Other than that, I say what are we waiting for? Thanks to everyone for taking the time to talk about these issues. It means a lot to me personally. I still hope one day soon we will find ourselves working together much better. I don’t care which side of the aisle you are on. I agree, no petition should speak for anyone that is not onboard. 

John De Herrera: In case you didn't catch it, the following piece dropped from The Hill yesterday. Meckler and Lessig are mentioned/quoted. Coburn says he'll be "working on it."

http://thehill.com/homenews/senate/216469-sen-coburn-lets-change-constitution

As Dan mentions in his email below, a count benefits everyone looking at and working on this issue. Can we get Coburn to talk about a count, and perhaps expedite it?

John De Herrera: Upon further review of the video off Capitol Hill, it looks like they're setting up Lessig and Meckler to ride herd on the blue and red, and then control the convention much the same way they govern now--simply keep discussion narrowed between two points: BBA/Term Limit on the right and "Give Congress the power to regulate campaign finance...." on left. So it looks like a slow walk and the steps are to get us to that place where we're going through the process of a convention but still talking status quo politics. And seeing how electronic voting machines are a discussion of the past, I have no doubt they plan to install delegates. I know who the political foes are, and some I'm merely suspicious of, but I'm not making any judgments until required.

Mark Meckler: Not sure what you're inferring here John.  Who exactly is setting me up?   And are you somehow of the impression that I'm a BBA / Term Limits guy only?   Seems like this discussion is veering way off of any productive track here.

John De Herrera: Mark you came on to the scene at Larry's convention. I videotaped you, a great segment, and I believed you. Somehow you've now been led to believe an accounting of the public record is not something to put your name to. We've been debating this since the 1960s and we've never had a count by Congress, AND in the time since the Harvard conference, new applications, unacknowledged. The writing is on the wall, and putting your name to a public declaration that Congress has yet to count doesn't mean you have to drop everything. There is no valid argument not to declare Congress should count. If you're an operative or have a political agenda other than the Constitution and the rule of law, like I said, I'm not making any judgments.

Mark Meckler: Okay folks...I'm done here.  This is no longer productive.  There are many great patriots and political warriors on this list.  No one here deserves the treatment being doled out by John De Herrera. Always happy to communicate in a respectful dialogue, but this is now beyond that line. John, I'm not even going to respond specifically to your bizarre and irrational innuendo about my motives.

David Guldensuch: Mark, Thank you for your always valuable input. This group clearly covers a broad spectrum of political viewpoints and personalities. We all agree that an Article V convention is needed for our country right now. We have many different approaches to getting there. Having worked with COS, BBA and CFA here in Georgia this past session, I know firsthand that we need to find ways to work together when we can (as I thought we did in Georgia) and work separately when our interests diverge. Thanks again for all you and COS are doing to promote the need for an Article V convention throughout the country. I trust that no one here would ever intend to disrespect another. My apologies to the extent that message may have been sent.

Bill Walker: This all dates back to the Walker lawsuits which in turn date back to earlier suits and positions of the government. In so far as a count, the acknowledgement was made in 2006 when the SG admitted there were sufficient apps to cause a convention call and admitted that there were (at that time) 567 applications. Turns out the figure was a bit off by nearly 200+ plus but what’s an app or two among friends? The Constitution is absolutely plain. Congress shall call on the application of… not when some believe it will further their political agenda. It is a convention for proposing amendments, not just those which are politically popular. Hence, the government when it counts will refer ALL applications to the convention for their consideration because they have no choice. There is nothing in Article V or elsewhere giving Congress authority to withhold applications. If they do, they only shoot themselves in the foot. The number of apps is so vast, so massive that if Congress only turns over the balanced budget amendment proposals to the convention, there will still be enough for two separate subjects to cause a convention. So Congress will be required to call immediately and hence at least three conventions will occur. The cat fight over conflicting amendments could try the wisdom of Solomon and even the most political locked in minion will see oppose doing that. Hence, the better choice: bring it all to the table at once and let the convention sort it all out. Anyway all of this will be settled shortly. If COS/CFA are correct as to control of delegates, appointing them by disenfranchising the American voter from the process, pre controlling convention agenda (and therefore a count) arresting delegates who deviate from instructions of unspecified sources, setting up new methods to amend the Constitution without benefit of amendment (all the time complaining that unspecified liberals and courts are doing this and it is wrong) together with pre determination of ratification of an amendment which it is said (I assume with a wink) the delegates are “free” to write any proposed amendment they wish, then the government will, by its actions, shortly endorse all of this. If not, I suspect Mark, Robert, Nick (see I’ve calmed down now) will have much bigger things to worry about than whether John De Herrera makes them uncomfortable. As stated earlier this week I contacted the US Attorney yesterday and filed a complaint asking for investigation regarding all of this. Welcome to my world. If you have a complaint about the convention, you file a real lawsuit, not post on some site. You think what someone is doing is wrong, you file a real complaint with the real authorities and let them do their job as authorized and under real federal law. No response yet from the office. Didn’t expect there will be one this fast.

David Biddulph: AV Advocates

Moving forward to the nation’s much needed Amendment Conventions I suggest we focus on turning around the last 11 of the original 17 “rescind all Article V Applications <http://en.wikipedia.org/wiki/List_of_Rescissions_of_Article_V_Convention_Applications> ” states of OR, MT, SD, WY, ID, UT, AZ, OK, SC, & VA. The following states have now reversed their previous recessions and re-applied for an Article V Amendment Convention: AL, FL, LA, GA, NH, TN, and ND. (Note: Senator Olafson is the first person to successfully lobby not one but two states to re-apply for an Article V Amendment Convention: ND and LA…THANK YOU Curtis!) The reason for the 17 recisions <https://www.google.com/search?client=safari&rls=en&q=recisions&ie=UTF-8&oe=UTF-8> ... a 40 year non-stop funded campaign by Eagle-Birch-Federal Power Advocates (FPAs) preaching the run-a-way convention theory. Who on this string is best equipped to educate legislators in the 11 “rescinder” states that the Article V Amendment Convention was included in our Constitution to be used by the states/people as a constitutional safety valve and not as a constitutional death trap? What if he were prepared to initiate an Article V Educational Campaign as soon as the funding was secured? Who else would be interested in getting a prospectus on how an Article V Education Campaign could turn around the last 11 states who "rescinded all" so that the states themselves can self-count to 34? It should be noted that the proposed AV Education Campaign is tax deductible and will not be pro or con on any proposed Convention Application. Please call David Biddulph, 386-478-9304 if you want to help me round up the funds to initiate the Article V Education Campaign that I believe is the key to AV and saving the American Dream…for my grand daughters. :) FYI: Our ship of state has taken on 17.6 trillion "gallons of water". The Congressional Budget Office last week estimated that our ship will be taking on an average of another 1.1 trillion “gallons" per year for the next 10 years under laws written by both parties over the last 70+ years. Since Greece defaulted: stock market down 84%, GDP down 29%, unemployment 27% and youth unemployment at 55% is considered a major reason for continuing riots. Of the World’s 193 countries only 10 are in deeper debt than the U.S. as % of GDP. (Note: if the 11 rescinder states reapply for a Balanced Budget Amendment Convention and and the Wisconsin Senate joins the House in passing a BBA Application…we will be at 34 active applications and off to DC to get concurrence on the 34 states' preferred time and place for the constitutionally mandated AV Convention. 

Mark Meckler: Going into this I was warned by many about the "infighting" and the circular firing squad mentality of some in the A5 movement.   Unfortunately, I've now witnessed it.  I will not respond in kind.  It's not productive. I appreciate all involved, and appreciate that there are many approaches to the goal, whether I agree with a particular approach or not.  I have learned much from many in the movement.   Each engaged in this fight believes their approach is the best and most likely path to success.   And I believe everyone on this list is engaged because they are true believers in the cause of liberty. Based on our common cause on this list, there should be an environment of mutual respect.  And mostly, there is.  We are, after all, on the same side, and are each in our own way working to restore liberty in America.

Byron De Lear: Good words Mark. I would only add that if you think the infighting and “circular firing squad mentality” is bad now, wait until things begin to accelerate toward the convention. Point being, is that several of us early on knew that as the AVC movement grew it would be exceedingly difficult to avoid getting mired into the partisan gridlock that cu­­rrently infects Washington DC. To this end, we decided in order to multiply our efforts toward success we would bring together conservative and progressive AVC supporters without declaring the specific amendment(s) and/or amendment language and embody the breadth of AVC advocates in a non-partisan group (FOAVC). It was a preemptive effort to stave off partisan, agenda driven bickering that was surely to come as we neared our goal. This is supporting the Article V Convention in a purest sense—which is to say, supporting the structural aspects of why the Article V Convention exists; a bottom-up correction to a top-heavy Federal Government. We support the convening of an Article V Convention as a necessary check-and-balance to right our ship of state, as David Biddulph expressed, and if it’s not “open,” and is seen promoting a one-sided agenda, it will be dispassionately blocked by the other side. I know this has been shared here before, but I would encourage those who are here as champions of liberty, and I hope that’s everyone here, to really ask yourselves—are you supporting the Article V Convention to only visit your particular political idea? If so, the convention frame, if you will, takes a second seat to your political agenda; and this is politically shortsighted and a flaw, IMHO, in our approach. We should be Fivers in a purest sense if we believe the Founders design and support the convention as a structural necessity to restore balance to our nation’s trajectory—we should support the convention for the pure intrinsic civic value associated with it; of opening up a new front for citizen engagement; a deliberative assembly of concerned citizens exploring solutions that Congress and their corporate and/or ideological handlers, perhaps, are incapable of doing. I know it’s fun to build movements by throwing a lot of political “red meat” to the side you associate with—and it may even seem easier to build the movement by doing so—but without a transpartisan approach banding together for the nation’s first AVC, we’re only building a house of cards. It may be more difficult to advocate for the convention in of itself, but with the left flank and right flank working together to coerce the mainstream into relinquishing the denial of our fundamental, constitutional right to convene, we could really achieve the goal. Here's a good piece Dan Marks just posted on FB describing some of the points I just made in my response to Mark Meckler and how we will have to pull this together to get it done instead of working in separate silos.

http://www.veteranstoday.com/2014/08/05/38-states-call-for-constitutional-convention/

Bill Walker: All are beginning to finally realize that as the reality of a convention call begins to percolate and the coffee begins to brew there are plenty of “controls” to regulate a convention. You’re experiencing it now. The two worlds—the constitutional and the political make up a convention. Now you are experiencing, perhaps for the first time, the reality of facing both worlds. Let us look at the basic fact. Regardless of how you cut, slice, dice or fold it the fact is the Blue and the Red can each claim at least 13 state legislatures, which is to say 13 states, solidly in their pocket meaning each has an automatic veto. Political fact two. In order to get any amendment, regardless of what it may, what its subject is or whatever passed and into the Constitution, it will have to satisfy the other side’s automatic political veto. In short, both conservative and liberal are going to have to learn to work together on this and come to common ground on issues that they will eventually realize will far outlive them and their day to day political existence which mostly concerns the next election rather than the next millennium. That is what amendments about: what is this nation going to be long after those to effect it are dead and buried. It’s one thing to win an election. It’s quite another to pass an amendment banning an economic and political practice which has served as bulwark and mainstay of the entire nation for over 150 years. I’m referring to the decision facing those who passed the 13th Amendment. Slavery and its related industries was the greatest part of the nation’s GDP and to end it literally meant starting all over again politically, economically and socially. But those at the time had the courage to come together, (albeit with great conflict I will instantly admit) and do what I think all will concede was the right thing for this nation. We now face such challenges again and the sooner those in this virtual room begin to realize bigger issues are at stake than a particular amendment proposal the better. This power of the convention is far beyond the next election cycle. It is the people expressing their most fundamental right and the status quo attempting to quell it. Twice in our history the status quo won for a brief time. Then came a war and the people asserted themselves. The issues before now are fundamental and require our attention. Not to do so leaves us at peril. It basically boils down to this: who is going to actually be in charge of this nation—the government with all its ever increasing restrictions or the people who now have the capacity to almost literally run matters themselves if they desire. Only one will prevail. Now I notice all are walking around the elephant of my complaint to the US Attorney. Fine. Ignore it. I’ll let you know if and when it is responded to. I know it received immediate notice from the US Attorney. I called the office today and gave my name and said I sent a fax. I gave no other details such as what the fax entailed, when it was sent and so on. I simply asked if it was received. The receptionist instantly knew who I was and replied in the affirmative. No hesitation, no we’ll have to get back to you, no we’re not going to act on this and so forth. Instantly aware of my action meaning it’s all over the office. Just like when I filed my two lawsuits before. Trust me when I say right now the matter is being reviewed either in the effected states, the AG’s office or both. In any event it will accelerate the process bringing more pressure on Congress to act. Oh yes and by the way, I ran across a very interesting fact today in check the Congressional Record. Seems in 2013 the House set about revamping the criminal code in USC. The Congress thus had the opportunity to remove the portion about delegates being elected to a convention and the part which extends the law to the states. Didn’t do it. If they have no intention of not calling, why not remove the law? Could it be they have read Hawke and are simply following the SCOTUS mandate? I would say their actions again indicate they are going to call. Every time they have had the opportunity not to do so, they avoid it. No reason to do that if you are not going to call. It’s time to come together people. Start looking for what you can find in common, not what divides you. And you remember you have no idea how much time you have.

John De Herrera: The only things on the other side of a convention call are consensus or no consensus, that means theory built on irrational fears and/or misunderstanding is not infighting, but members of a group thwarting the goal of the group. If Michael Farris and Larry Lessig recognized the verity of the FOAVC position the call would go out this year, and from there, in a natural progression of events, the Constitution would deliver us from the status quo. It's very simple, get Senator Coburn to stop saying he's going to work on getting a convention and instead say it's time for Congress to count--before he retires (maybe even get him to act like he means it and build a caucus for such). If the cause of liberty is a career move for some and the goal is to look busy until 2016--OK--but just consider you may have to one day answer for your actions/inaction at this time.

Dan Marks: Aloha, Anyone who thinks Article V is a “death trap” is not an Article V advocate or correct. The founders did not put a self destruct button in the Constitution. You should not educate people regarding Article V if you are promoting it as a death trap.

Sandy Levinson: I remain one of those people who believe that a convention has the same power as Congress: ie, to "propose amendments" about anything and everything. The protection against a "runaway" convention is not found in legal argument, but, rather, practical political reality.  Or, to put it another way, if a convention could successfully propose, say, limiting the power of the Senate to confirming ambassadors, the explanation would be that an overwhelming number of Americans following the arguments were persuaded by Madison's original view that the Senate was an  "evil" we no longer have to put up with in its present form.

John De Herrera: Thanks Sandy for the ray of sunlight. For anyone who doesn't understand what Sandy said in the second sentence of his comment, please re-read it. It's a profound truth showing the Goldwater Institutive/CFA/COS/CitizensInitiative positions are wasted energy. In fifteen years I've never seen the argument put so well.

Mike Stern: With all due respect to Sandy, I think he is clearly wrong. By which I don't just mean that I strongly disagree (which is what people usually mean by "clearly"), but that this is one of those "rare instances in which a political truth can be brought to the test of mathematical demonstration," as Hamilton put it.

To wit, if Congress receives 34 applications for a limited convention, it has a choice. It can decide that the applications are valid and that a convention must be called or it can decide they are invalid and that no convention should be called. If it calls a convention, that convention is either limited (if Congress was right) or powerless (if Congress was wrong). If that convention then proposes an amendment outside the scope of the applications, such an amendment is invalid either way. Thus, Congress would be not only permitted, but required, to refuse to submit the proposed amendment to the states for ratification.

Put another way, for an unlimited convention to take place, all 34 applications must be reasonably susceptible of an interpretation that would permit such a convention. Mike Paulsen covered this in some detail 20 years ago and, if anyone has taken issue with him on this, I am not aware of it.

Note that if the proposed amendment is so overwhelmingly popular that Congress fears opposing it, it has a completely legal option. It can propose the amendment itself, by a vote of two-thirds in each house, something it does not need an Article V convention for. But it cannot simply submit the proposed amendment for ratification by a simple majority vote.

Of course, one can postulate a situation in which circumstances are so dire and/or popular opinion so inflamed that all legal restrictions, no matter how clear, are swept away, ignored by Congress, the courts and the state legislatures alike. But under that assumption there is no point in having any discussion about legal rules at all. And it has nothing to do with an Article V convention.

Sandy Levinson: Charles  Black, of course, said precisely that Congress should simply ignore "unconstitutional" petitions for a limited convention. If they in fact acquiesced, this would constitute just another "informal amendment" of a radically defective Constitution, a submission to public opinion and political pressure rather than fidelity to the initial Constitution re new conventions.

Bill Walker: I am afraid that John is totally correct in this matter. The parliamentary fact is this: all applications under both senate and house rules are laid on the table. That has been the procedure since 1789 which is why under the rules applications remain in effect. It requires but one member of Congress to move to take them off the table  and thus trigger a count of the applications. Thus all that is needed is to ask the senator to use a simple procedure from the senate floor to achieve what he says he wants. He can do that any day.

Under this rule, for example, the senator need only point out the business is not concluded:

Rules of the Senate

BUSINESS CONTINUED FROM SESSION TO SESSION

At the second or any subsequent session of a Congress the legislative business of the Senate which remained undetermined at the close of the next preceding session of that Congress shall be resumed and proceeded with in the same manner as if no adjournment of the Senate had taken place.

He can move to consider any day he wishes:

LIE ON TABLE

"Subjects on the Table" consist of business, usually bills and resolutions, placed there by unanimous consent. Once business has been given this status, it is in order to move to proceed to its consideration, even though it has not been referred to a committee for consideration.

Consideration of Measure on Table:

A resolution which has been ordered to lie on the table, which must be done by unanimous consent, does not thereafter automatically go to a committee,l nor is it automatically laid before the Senate on a succeeding legislative day as in the case of resolutions going over 1 legislative day under the rule. 2 Where a resolution or bill has been ordered to lie on the table, and subsequently an objection is heard to a unanimous consent request to call it up, it must or may be brought up on motion, as any bill on the Calendar. 3 (Riddick's Rules of the Senate)

And of course there is the matter of point of order:

POINTS OF ORDER

Points of order or questions of order are directed against present actions being taken or proposed to be taken by the Senate and deemed to be contrary to the rules, practices, and precedents of the Senate.

Unless by unanimous consent points of order are precluded, or are not timely, any Senator when recognized may make a point of order against any attempted procedure or action to be taken by the Senate, and the Chair is required to rule thereon without debate; but under Senate precedents, the Chair may entertain a discussion thereof for his own edification. Under Rule XX, if the Chair submits the question to the Senate for decision. the matter would be debatable.

Any ruling by the Chair not appealed or which is sustained by vote of the Senate, or any verdict by the Senate on a point of order, becomes a precedent of the Senate which the Senate follows just as it would its rules, unless and until the Senate in its wisdom should reverse or modify that decision.

Rule XX

[Questions of Order]

1. A question of order may be raised at any stage of the proceedings, except when the Senate is voting or ascertaining the presence of a quorum, and, unless submitted to the Senate, shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate.

He can raise the matter any day, without debate and have a count any day he wants it. The rules of senate (not shown as there are too many references for an email) clearly mandate the Senate shall obey the Constitution.  The rules clearly state a point of order may be raised regarding actions of the Senate which are " deemed to be contrary to the rules, practices, and precedents of the Senate" which of course includes violation of oath of office and disobedience of the Constitution as these would be contrary to the "precedents" of the senate. Therefore if Mark and Michael would be so kind as to contact the Senator on Monday and ask him to raise the point of order on the floor I'm sure we can have a count by the end of the week and a convention call within a week following which is what the senator says he wants. As sufficient apps exist to discuss a balanced budget amendment anyway there is no possible political reason not to call from their political point of view and the app for repeal of Citizens United has also been recorded so there can be no liberal objection.

So I'm afraid John is correct here. There is no excuse for any other action by the senator. If you really want a convention you have no excuse and there is no reason whatsoever to wait until 2016. The senator can have it long before he leaves office if in fact he is telling the truth. You see what dealing in my world instead of theory means now? Last Thursday the first official steps were taken with a simple four page fax to the US Attorney to settle once and for all the theory of Robert and COS/CFA. Today the rules under which a convention call can be had by those in Congress immediately are presented meaning by Tuesday with a simple phone call they can be brought to the attention of the senator in question and implemented. The senator of course will point out to the senate there is no debate as the matter is peremptory on the senate. Thus there is no excuse whatsoever for no count and hence no call.

So within less than a week this matter will be resolved--if what is desired is a convention. So I eagerly look forward to the announcement by the senator that he has raised the point of order in the senate on Monday and a count is now underway. My thanks to Michael and Mark by making contact with the senator so this information can be passed directly to him by them. Contact by anyone else of course is not likely given that the senator only accepts mails from his home state. I know I already tried  I'm sure Michael and Mark have any other motive but the good of the nation in mind and therefore ensuring the Constitution is obeyed is at the top of their list. They are all loyal Americans and I cannot believe they would put petty political agenda above that of the good of the nation and thus the preservation of the integrity of the Constitution--meaning it is the required duty of the senator to bring this matter to the attention of the senate and the nation immediately. Remember it says "on the application" and hence immediately.

Looking forward to the email for the appropriate parties who will state they have contacted the senator.

David Bidulph: Article V Advocates of Open Conventions

What did Hamilton mean in Federalist 85:

"But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point -- no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution."

"It is this that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congres will be obliged "on the application of the legislatures of two thirds of the States [which at present amount 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 the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority."

Rob Natelson: Okay, I just have to intervene at this point.

Sandy, Charles Black's two panicky, agenda-driven tirades on this subject were unsullied by any historical research or understanding whatsoever. His conclusions should be valued accordingly.

The courts, including the Supreme Court, have told us repeatedly that historical usage is important in interpreting and applying the language of Article V. (See http://constitution.i2i.org/2013/10/10/who-says-history-is-relevant-to-article-v-well-the-u-s-supreme-court-for-one/) There were over 30 intercolonial or interstate conventions previous to the drafting of Article V, and they were all given more specific tasks than "draft anything you want," and they were expected to remain within their authority, as virtually all did. Even the charge (in my view, false) that the 1754 Albany Congress and 1787 Constitutional Convention exceeded their powers led to howls of outrage.

In light of that, anyone who contends that Constitution contemplated an interstate convention necessarily untethered to any agenda, has got a very heavy burden of proof to carry. And in view of the founders' own statements on the issue---of which the Hamilton comment Dave Biddulph cites is only representational---I do not see how that burden can be carried.

David Bidulph: Article V Advocates

In my relatively short 5 year experience in lobbying for Balanced Budget Amendment Applicaitons, the only reason why the states have not convened an Article V Amendment is the fear of a runaway convention that could propose unlimited amendments. This fear has been effectively (17 states rescinded all Article V Applications) promoted by: 

Eagle Forum: "Dont they realize that the convention will set its own agenda and that states will have no sayso over which amendments are considered?"

John Birch Society: "Well-meaning conservatives who advocate for a constitutional convention fail to recognize that once Congress convenes a convention it cannot be undone and no predetermined rules or limitations, adopted by either Congress or the states, will have any bearing on what the convention delegates may choose to do or propose.

Sandy Levinson: It's not surprising that a basically paranoid group like the John Birch Society would believe in the reality of a runaway convention. But this does not render incorrect their legal analysis.  Ditto the Eagle Forum. To defeat such arguments requires addressing their paranoia instead of claiming that they're crazy in their legal arguments. Remember:  a "runaway Congress" could propose amendments reinstating slavery, prohibiting all ownership of weapons, and establishing Hinduism as our national religion.  Ask yourself why they don't. Legal analysis is irrelevant (unless you believe in "unconstitutional constitutional amendments," ala Germany or India).

David Guldensuch: Gentlemen:

I have thoroughly enjoyed reading the many different viewpoints on Article V set forth by members of the august thread. As I have been reading along, I have tried to summarize for myself those views in some type of succinct form. It seems we have at least three distinct views and perhaps more on the issues of valid applications and open v. limited conventions. Permit me ever so humbly to try and summarize them:

CATEGORY ONE – THE LIMITED APPLICATION/LIMITED CONVENTION VIEW: As Professor Natelson and others have written, history tells us that during the founding era, there were some thirty or more conventions of states/colonies, most of which were limited in the scope of the call and in the scope of activity at the convention. Thus, as the Courts have opined that they will look to historical usage as precedent for interpreting Article V, the weight of authority suggests that Article V applications may be limited in scope by state legislatures, and any convention called pursuant thereto must similarly be limited to proposing only those amendments that fall within the scope of the call. I understand Professor Natelson, BBATF, and COS  to be in this camp and perhaps others.

CATEGORY TWO – THE ALL APPLICATIONS COUNT/UNLIMITED CONVENTION VIEW: I believe this is the view which I hear my FOAVC friends and perhaps others espousing, that is, that a plain reading of Article V requires only that a state apply for an Article V convention for Congress’ duty to call one to arise. Once two-thirds of the states apply on any topic or on an unlimited basis, then the threshold is met and a convention should be called. It will then be up to the convention delegates to set their own agenda. Neither Congress nor the States can limit the convention agenda. Since I believe we all agree that at least 49 states have called for some form of a convention, then Congress has been for some time and is obligated to call a convention right now.

CATEGORY THREE – THE ONLY UNLIMITED APPLICATIONS COUNT/UNLIMITED CONVENTION VIEW: Judge Brennan and perhaps others take the position that any application which attempts to limit the subject matter is an invalid application and thus only 34 unlimited applications meet the Article V threshold, at which point a convention must be convened that is unlimited and sets its own agenda.

While I recognize that we also have differing views on delegate selection, rescission, proportional voting, convention rules, etc., which differences I am not addressing herein, let me ask if I have missed any person or group’s perspective on the issue of  LIMITED VERSUS UNLIMITED APPLICATIONS AND CONVENTIONS? If so, please let me know.

I for one would be interested in knowing where each of us perceives ourselves to stand within these three and possibly more CATEGORIES. Please feel free to vote openly or to e-mail me privately with where you stand.

Chip DeMoss: We at Compact for America believe that the states can come together and apply to Congress for any form of convention they want, including:

1.       A totally unlimited convention (FOAVC as an example)

2.       A convention limited to a broad scope of reforms (COS as an example)

3.       A convention limited to a narrow scope of reform (BBATF as an example)

4.       A convention limited to an up/down vote on a pre-approved specific amendment (CFA as an example)

We do not believe that these approaches are mutually exclusive.  We believe that individual states can choose to pursue one or more (or all 4 approaches) at the same time, using different applications.  We believe the rules and procedures agreed to for one approach may differ from the rules and procedures agreed to for any of the other approaches.  Accordingly, we believe it is incumbent for the states to make it clear in their applications exactly what is being requested of Congress so that there is no question when the 34 state threshold has been met.

Dan Marks: Aloha, No, “If that convention then proposes an amendment outside the scope of the applications, such an amendment is invalid either way.” contradicts the text in article V, so I know that is incorrect. “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” There is no creative way to interpret that.  It is very straight forward. There is no other reason to put that text in the article. If Congress or states try to limit and they go beyond that limit, it is “valid … in either case”. Why else would the founders have included the phrases “ in either case, shall be valid to all intents and purposes”? Dr. Levinson is correct, the political realities prevent a runaway as they prevented the outlawing of slavery during the Declaration of Independence too. The political reality was much more mild than any idealistic agenda. They could only do the best they could. The same thing will happen again. The disappointment will be what we didn’t pass, not what we did pass. A runaway is the last thing we need to worry about, a convention controlled by either or both parties is what we should be more concerned with.

“There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other.

This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.”

~ John Adams

A convention must be free and deliberative to break the control of a two-party system. It is fundamental to its purpose.

David Biddulph: Article V Advocates Give a big welcome to Professor Randy Barnett who has expressed an interest in our discussion of how to dust off Article V and restore balance to our republic.

John De Herrera: A step or two away from going in circles, so to make clear:

Sandy said, "The protection against a 'runaway' convention is not found in legal argument, but, rather, practical political reality,"--he meant words/actions to protect against a runaway convention are superfluous because 75% of a society is never going to agree to something stupid--not even to something marginal--only things of overwhelming/broad support. A 3/4 super-majority is a principle making it MATHEMATICALLY IMPOSSIBLE for a society to harm itself in the process of building consensus.

"To defeat such arguments requires addressing their paranoia instead of claiming that they're crazy in their legal arguments....", i.e. addressing the paranoia has been the task and is what we're doing right now (again) in this exchange--when the only place a convention can runaway to is consensus or no consensus. IT CAN'T GO ANYWHERE ELSE. That means words/actions to protect against a phantom that doesn't exist are what they are--stupid. If one is paranoid 75% finds consensus on something that cramps your style and your efforts are to muddy waters with irrational fears and/or be an impresario for hidden forces, OK, be an enemy of the state and the people, I only say such in hopes I communicate something human to human, that helps someone move to the light of Article V. I called and talked with David Biddulph over the phone, super nice guy, but still doesn't understand that to even view an application in terms of rescinded or invalid is a sign of corruption of the concept itself. We're still trying to get over that the only thing to fear is the end of the status quo, so it can be reformed--which of course is nothing to fear at all.

Rob said: "There were over 30 intercolonial or interstate conventions previous to the drafting of Article V, and they were all given more specific tasks than 'draft anything you want,' [thus] anyone who contends the Constitution contemplated an interstate convention necessarily untethered to any agenda, has got a very heavy burden of proof to carry." I've tried to say before, but he still doesn't gett, is that back then conventions were understood differently than today, and working out government at that time was of a mindset like a task-force, they understood it to be no more dangerous than employees of a company meeting in the break room to discuss rules for the breakroom. Then came the Constitution, and thus changed the orientation of the subject, so that now today we're trying to convince people that it can't run anywhere but super-majority consensus; thus no reason to limit, and thus no reason not to be calling for the count for rational/logical reasons no matter how many kinds of conventions you believe there are. It is based on part of the Constitution, the congressional records, and they make it SELF-EVIDENT we're in need of a general convention at once.

Mike says for an general convention to take place, all 34 applications must be reasonably susceptible. The problem is, once you introduce/add the word "reasonably" to the equation, you end up with never-ending navel-gazing about what your tummy feels good with, when in reality, the only law regarding Article V is the Constitution itself, and it does not say "reasonably," not even for the same thing, or within a reasonable amount of time. The call is based on an objective numeric count for a reason--because I don't want to deal with your navel-gazing and you don't want to deal with mine. This is what David was asking in asking what Hamilton meant--the call is based on 2/3 having applied, the issue of whether to call or not is a mathematical issue, not a political issue, no terms or conditions. Which is why Hamilton also said, and Madison, in Congress, agreed and understood, that the application can only be tabled as a separation of powers. All Congress can do is take the applications off the table and count them, and by "them" we mean a piece of paper or electronic communication from a state legislature to the Congress under Article V, all other words being constitutional dicta. If terms/conditions for Article V are not dicta then we're back to someone's subjective interpretation of "reasonably." In other words, people who use the word "reasonably" in discussion of a federal convention, are walking around believing there is going to be consensus before we even get to the table, which of course is ludicrous.

The Constitution is untouchable. Once "reasonable" comes into play, the right is suspended. And since we don't want it suspended, means no one can touch it, because once touch, where does the subjective stop? It doesn't, and prevents the ultimate right of the people from being executed.

We need Senator Coburn to request a count. Just like Bill said, he doesn't have to work on getting it, we can have it right now, and the only thing to fear is if we don't.

Larry, Michael, and Mark invite Bill Walker to DC, and all you guys meet in Senator Coburn's office, and get it done. If not, I hope the rest of you can come to terms that the basis for paranoia is irrational, and thus words/actions to limit are a sign of corruption itself. If you come to realize there is not reason to limit, and get the genius to change your mind and your message--welcome home.

Chip DeMoss: John - we at CFA want to better understand your position regarding the ability of Congress to aggregate the various applications that have been submitted by the states in the past to get to the 34 state threshold.  From what we have read, we surmise that it might be your position that an application from a state that requests an Article V  convention for the sole and exclusive purpose of considering a balanced budget amendment (i.e., Kansas 1979) could and should be aggregated with an application from another state that requests an Article V convention for the sole and exclusive purpose of considering a right to life amendment (i.e., Alabama 1980), and that the resulting convention to be called by Congress would be an open convention that could consider any matter brought up by any delegate irrespective of the specific requests by the two states to limit the convention to mutually exclusive specific subject matter.  Are we correct in this understanding?  If not, please provide further clarification where necessary.  Also, what is your position as to whether a state can rescind an application that is has previously submitted to Congress if it no longer wants to be part of an Article V convention to propose amendments and the state does not want its application included in the aggregation count?  Obviously, different answers to these questions would result in different counts.  However, please understand that we ask this respectfully in hopes of furthering the conversation with you and fellow Article V advocates.

Dan Marks: From where I stand I would only ask, how many conventions are described in Article V?  I only see one convention that is authorized in Article V. 

“a convention to propose amendments” also shows a chronology to the process.  There is not an application for an amendment, then a call from congress.  It is a call, then convention, then proposals to correct any and all “imperfections in the Constitution” as one of the first applications stated. Until Article V is amended to show otherwise, I see convention that makes proposals which shall be valid once ratified whether they are “sanctioned” or not.

I know the response to that is Congress only proposes one amendment at a time and that is fine but Congress is ongoing and it proposes amendments with the identical powers in Article V as a convention.  Thomas Neale also refers to the Convention as a “co-equal” to Congress. I think Congress will ultimately take cues from the CRS on this should they ever take action.

Also I think David G’s breakdown of perspectives is a good one. ( and am between Brennan and FOAVC, I think) However I would just read the applications. The applications are all unique and the legislatures are not veiling their intentions. Each need to be evaluated accordingly instead of categorized by traits.

Mike Stern: Dan- but "either case" refers to (1) Congress proposing amendments when

"two thirds of both Houses shall deem it necessary" or (2) a convention

proposing amendments when Congress calls one "on the Application of the

Legislatures of two thirds of the several States." An amendment proposed

by a convention not applied for by two thirds of the state legislatures

would have the same legal status as an amendment proposed by Congress

without two thirds of both houses deeming it necessary. In other words, it

would not be valid.

I take it some  believe that any application, no matter how explicitly

limited, counts toward calling an unlimited convention. By this standard

Congress has been obligated to call a convention for a very long time, and

presumably will remain under this obligation for some time (in perpetuity,

if one also believes that rescissions are impermissible).

As far as I know, there has never been so much as a single member of

Congress, House or Senate, who has subscribed to this view. Despite the

fact that Congress has (allegedly) been obligated to call an unlimited

convention for decades, if not centuries, not one member has filed a

resolution to call such a convention. In any Congress. Ever.

I gather John's point is that allowing Congress to decide what counts as

an "application" gives it a lamentable amount of discretion. But any

counting rule has to start with the question of how one identifies a valid

application. If limited conventions are not allowed, then an application

for a limited convention cannot be valid. If limited conventions are

allowed, then Congress has a certain amount of discretion with respect to

aggregating them (unless all of the applications are exactly identical).

But Congress only has this discretion to the extent that the state

legislatures choose to submit applications for limited conventions. Which

seems to make a lot more sense than allowing Congress to use those

applications for purposes that the state legislatures never intended.

John De Herrera: Chip, in responding I’ll recount that when Rob and Nick and Bill and myself had a similar debate about two years ago, where Rob was asking Bill for references to colonial records, offhandedly I asked: If your loved ones were taken away and you wouldn’t see them until a convention is called, of course you would align with the argument that produced one as soon as possible. But FOAVC is not making the argument because our loved ones are imprisoned, we’re making it based on the letter and spirit of the law.

By way of metaphor as explanation, consider that America’s first stop sign was 1915, Detroit. Of course with the advent of the automobile, accidents became a reality the living/breathing people of that time needed to deal with. The resultant letter of the law was and still is that a vehicle shall stop so as to embody the spirit of the law--to prevent auto accidents and further harm. In turn, the letter of the Constitution is an objective numeric count because it too embodies the spirit of the law--which is--we don’t want politicians, judges, ivory tower types, and media impresarios practicing the politics of uncertainty, denying the natural right of the people to build consensus over existing harms. In other words, the correct argument as to fact and law is that, because the Constitution is the only law regarding the convention and it includes no terms or conditions for an application other than its having been cast, means one thing: there aren’t any terms or conditions, any and all such is constitutional dicta, and to lend legal weight to dicta is to construe the law so as to defeat its obvious aim. I’m forgetting the quote exactly, but Jefferson had it right when he said lawyers will construe the law to mean whatever they want or nothing at all. FOAVC is constructing the law so as to allow the Constitution to operate as intended and of course we implore you to join us in this.

As we know the 1787 Federal Convention was comprised of people who wanted to shoot each other, some believing slavery a right, others an abomination. When you enter into a legal contract with someone you dislike, you make sure there’s a way to get out if it stops working. The reason a state cannot rescind an application is because the calling of a convention is then left to the discretion of a state or states--thus again preventing society from exercising its right to deliberate. This is estoppel, preventing the entire contract from operating as intended. An attempt at rescission runs counter to the spirit of the law, thwarting the right of the people to deliberate as a whole, and thus any such action is itself an abomination. To put it succinctly, the attempt to rescind an application is an abomination to the spirit of the Constitution.

When Mike says that to his knowledge there has never been so much as a single member of Congress, House or Senate, who has subscribed to this view, he says it as if that’s a big surprise. When he says believing such allows Congress to deny a convention in perpetuity, he forgets Lincoln’s quote, that it doesn’t matter what Congress says, they got a tiger by the tail and if it starts looking at them funny, they’ll let go.

If we get Senator Coburn to initiate the count, whether or not Congress wants to apply terms/conditions aimed at preventing a convention, or to forestall it by saying we still need two more applications or some other such nonsense, it will still be a significant moment towards the truth. Practical politics would have one believe that once the count begins the truth will hit home in the 113th Congress, that the status quo of politics as usual is dead, terms/conditions irrelevant dicta, rescissions misguided and unconstitutional. In other words, they’ll convene a joint session, determine time/place, and issue the call under Article V.

One point Dan brought up, the Constitution mentions a convention not once, but twice. This is important because it shows a convention to be the political elixir that it was understood to be then and in fact still is now. All that said, hopefully it's clear what course of action ought to be taken at this time: determine if Senator Coburn is willing to go down in history as the right guy in the right place at the right time. If not, marshal forces on both the right and left to declare an accounting of the public record be made by the Congress. As the CRS report says in the frontispiece, in this day and age of social media, if enough of us want it, the Congress will have no choice in the matter.

Dan Marks: Aloha Mike,

The validity is in reference to ratification not applying for the convention. The proposals are valid when ratified by 3/4th of the states.  It removed the qualifications that you are imposing. If it comes from congress or convention and is ratified by 3/4ths it is valid.  There is not an invalid way to pass an amendment in Congress or Convention if the states support the amendment. 

The convention is already limited in the text of article V itself, they may propose any amendment provided it doesn’t affect the suffrage of states in the senate without the state's consent. That is how the convention is described, all valid applications need to apply for a convention as prescribed in Article V, not create a new type of convention. That is extra-constitutional to create a “compact convention”. 

The CRS is telling members of Congress:

“Reviewing the history of the Article V Convention alternative, the record of the Constitutional Convention of 1787 clearly demonstrated the founders’ original intent. During the convention, they agreed that a second mode of amendment was needed to balance the grant of amendatory power to Congress. This method, clearly identified in Article V as co-equal to congressional proposal of amendments, empowered the people, acting through their state legislatures, to summon a convention that would have equal authority to propose an amendment or amendments, which would then be presented to the states for ratification.”

"the legislatures of Ohio, in November 2013, and Michigan, in March 2014, applied to Congress for an Article V Convention to consider a balanced federal budget amendment; these are the first new state applications since 1982 and are also the 33rd and 34th applications for the balanced budget amendment convention. If all 32 previous related state applications are valid, it is arguable that the constitutional requirement for requests from two-thirds of the states has been met, and that Congress should consider calling a convention."

Thomas H. Neale,

Analyst in American National Government, Congressional Research Service http://www.fas.org/sgp/crs/misc/R42592.pdf <http://www.fas.org/sgp/crs/misc/R42592.pdf>

I would say that is far from “one member, in any Congress, never.” There is no resolution to call for a convention because there is no official count.  There is no basis to make a motion like that. There is constant plausible deniability without a count. Once there is an official number we can stop the debating and get busy picking up remaining states, if any are required.

I am a progressive telling conservatives you might want to check if you met the threshold on a single issue application. It seems comical to me that folks who support a BBA would ignore where the count is on that alone. Congress is informed of this possibility but since no one else cares, they can continue to ignore all applications. 

Can anyone say how close we are, which applications count?  I can tell you because of first hand knowledge, they never counted the applications on record or any of the rescissions which are contract law, not constitutional law. There is a great deal of questions surrounding where we are today and debating these points isn’t getting anyone on the same side, working toward the same goal.  We need a convention and you folks are honestly afraid of meeting with the left in convention, how will you ever ratify? I am not afraid of meeting with the right. We may continue to retort in snarky tones and quoting founding fathers for anther 100 years before we actually get any official action from Congress. This debate is not productive.  I don’t ask where we stand now for my own agenda. I would ask that for a moment in your efforts to gather more petitions for your own agendas to inquire and discover what Congress says about all of this. No one can definitively say with certainty that their perspective is correct, and if it is, which and how many applications count today.

Is this Indian Poker or Article V?  Let’s get real about this. It is their obligation to keep track, they failed. I believe that it was intentional. 

Can anyone say where we are now? Give me a number and a list of states so I can go to the next step. 

These are applications from legislatures counting other states and declaring they reached the threshold.  Yes, it looks like Congress has been obligated to call a convention for a very long time.

1910 <http://foa5c.org/file.php/1/Amendments/045_cg_r_07120_1910_HL.JPG> -WY-General Call for an Article V Convention http://foa5c.org/file.php/1/Amendments/045_cg_r_07120_1910_HL.JPG <http://foa5c.org/file.php/1/Amendments/045_cg_r_07120_1910_HL.JPG>

1929 <http://foa5c.org/file.php/1/Amendments/071_cg_r_03369_1929_HL.JPG> -WI-General Call for an Article V Convention http://foa5c.org/file.php/1/Amendments/071_cg_r_03369_1929_HL.JPG <http://foa5c.org/file.php/1/Amendments/071_cg_r_03369_1929_HL.JPG>

Either way the fact that it is arguable should mean we need clarity.

Thanks for your input.

Byron De Lear: I appreciate and applaud your message Dan. Like you, I would also like to work with the conservative fivers toward a common goal of realizing our first AVC. I published a book review today which covers some of this informal group's discussion toward working together. For my conservative friends here, should you check it out, be forewarned the book review covers the corrupting influence of Big Money in our political system and does so from a progressive viewpoint, but concludes with some brief info about the convention movement.

"Peter Mathews ‘Dollar Democracy’ offers roadmap for social and economic justice"

http://www.examiner.com/article/peter-mathews-dollar-democracy-offers-roadmap-for-social-and-economic-justice

Dan Marks: Thanks Byron,

Again the clarity I am seeking is the same clarity the State of Idaho is requesting.  This resolution passed without a single vote against it in committee or the floor of either house. I would say that it is overwhelmingly reasonable to the legislators. Article V advocates ought to support it. 

http://www.legislature.idaho.gov/legislation/2014/SJM104.htm

Thanks again,

Mike Stern: Dan:

I am not sure what proposition you think the CRS language supports. The author indicates that there may be sufficient applications to call a balanced budget amendment convention. He is not suggesting that these applications could be used to call an unlimited convention. Nor is he suggesting that the balanced budget amendment applications can be aggregated with other applications for a different subject matter or for an unlimited convention.

My point was that if all applications, limited or unlimited, could be aggregated for purposes of calling an unlimited convention, Congress would have been under a continuing obligation to call such a convention long ago. It wouldn't be a close case or a judgment call because every application, regardless of what it says, would count toward the requisite number. I was merely pointing out the fact that no member of Congress has ever filed a resolution calling for an unlimited convention or, as far as I know, suggested in any other way that he or she believes that Congress is under the obligation to call such a convention.

There would be no need for Congress to do an "official count" before a resolution calling a convention could be introduced. As long as a member can identify enough state applications to reach the two-thirds threshold, he or she can file the resolution. (Technically, even that wouldn't be necessary, but I will assume that a conscientious member of Congress would want to be able to identify the applications before filing the resolution).  Since state applications are a matter of public record, this wouldn't be difficult (assuming that all applications count toward an unlimited convention).

Note that Congress would have to go through the same process to do an "official count" anyway. Somebody would have to aggregate all of the applications that they believed are valid and then file a resolution saying that there are x number of applications for a convention. I seriously doubt that either house is going to go through the effort to pass such a resolution, which would undoubtedly be controversial and wouldn't have any legal force anyway. You might find members who are interested in doing such a count (in fact I know there are some), but I would be very surprised if you could find any member who wants to count limited applications toward an unlimited convention. But let me know if you do.

[And] Just to be clear on terminology, what is called for by this state request is different than what I would call an "official count." It is simply asking that some official be tasked with collecting all the state applications and publishing them in a form accessible to the public. That is a ministerial task that could be delegated to the Clerk of the House, the Secretary of the Senate, or other congressional officials. Such a task could be assigned either formally (through a House or Senate resolution) or informally by direction from congressional leadership. For that matter, I think CRS would do this if they were asked by a committee chairman or possibly even an individual member.

But this would just involve collecting a bunch of public record information, not making any judgments on what applications are valid and which aggregate with each other. Congress is not going to (and could not even if it wanted to) delegate that responsibility.

Dan Marks: Aloha,

I have no stake in what view Congress agrees with, I just want them to pick one so we can pick up remaining states. I believe we have met the threshold every way we look at it except Judge Brennan’s belief that the only applications that count are open/general calls which I think there are only 27. We do not have sufficient number of those applications. There are for BBA, repeal of the 16th, and direct election of senators and president. It is obvious these states also felt the threshold was crossed long ago, including Michigan recently.

We don't know if the general calls can aggregate with some of the others that suggest amendments but are not limited to those suggestions. How identical must they be if Congress requires that? That seems like slippery slope to start telling states they didn’t come close enough to matching.

Also I don’t think aggregating applications would exhaust the capcity of the clerk’s office. I would imagine it could be accomplished in a week. I would like to verify that we only need 7 states for an open convention and watch them count them as they come in.

Is that the issue though? Would you rather get 34 fresh applications that would restrict access to a convention to a select portion of the people interested in proposing amendments instead of possibly only 3-7 states that can make applications for an open convention to correct any and all imperfections in the Constitution? Do we really have that luxury today? If we need to have 30 conventions, it seems to be extremely inefficient, but so be it. 

Thanks for your time and consideration.

John De Herrera: It's part of the Constitution, the actual current standing number of applications itself is PART OF THE CONSTITUTION. We know we have at least one valid one, right? How can anyone in the Article V game today vote No on a count? We ought to get the Senator from Oklahoma to initiate it from the floor and get the process of a federal convention started now.

Tom Brennan: Gentlemen:

Debating about the “count” is a waste of time and energy. Urging the Congress to count petitions for an Article V Convention is senseless. This is a purely political matter. There are literally no votes in Congress to call a convention, so why would anyone think that there are any votes to count the petitions?

Neither is there any sense in talking about a lawsuit to force Congress to count petitions. The Courts and the Congress are all part of the existing federal establishment. An Article V Convention is an anti-establishment initiative.

The 1787 convention was not called by Congress. It was called by the Commonwealth of Virginia. Congress echoed the call after nearly half of the States had decided to send delegates. Instead of urging the State Legislatures to petition Congress to call a convention, we should be urging the state legislatures to send delegates to a specific city on a specific date.

David Guldenschuh: Gentlemen:

As I understand it, one of the tasks of a committee within the Assembly of State Legislatures (formerly Mt. Vernon Assembly) is to evaluate the applications, assess their validity and how they should be counted, perform a count, and then to notify both the States and Congress as to what they believe the actual count is. If they determine that the threshold has been met, then they intend to notify Congress that a convention should be called and may provide a suggestion for the scope of the call. Thus, come their next meeting in December, I would anticipate that this task will have been performed and they will act on it.

If any of you has more detailed info than what I have just shared, please give us more detail.

John De Herrera: Tom, the Article V Convention requires a call from the legislative branch of the US Government, based on a count of state applications. You want to tell the rest of us that is untrue?

The fact the CRS paper came into existence after years of work shows clearly the issue is on the radar of Congress, and that it's been UPDATED with information regarding late applications also shows clearly the focus on a count is not wasted energy but obvious as a tactical approach and anything but senseless. Statements such as you've been making (and with your new book we gather are now in print), that Congress will never count/call, might hold water if the CRS paper and its updates were not reality--not to mention the Idaho resolution and recent comments by the Senator from Oklahoma. These things refute and in fact indicate we're very close to achievement.

Those individuals/organizations advocating for things other than a count/call are in a strict sense not actually advocating for the Article V Convention, but something else. So what do we do with those who claim to be advocates for Article V but in confusion actually thwart efforts? I guess we have to be respectful of those undermining the Constitution because heaven forbid we condemn a position as illogical and perhaps politically motivated.

The focus on getting the Congress to count makes ideas like Convention USA, COS, and CFA irrelevant. I personally tolerate such because I know that in terms of practical politics it's more important right now to have folks half-right instead of oblivious altogether. The hope is that with logic and reason the light bulb eventually turns on.

Finally, if we can't make the establishment acknowledge the count/call what makes anyone think it's going to acknowledge the products of alternate initiatives? The US Congress in its corruption is going to deign Convention USA/COS/CFA as the rightful heirs of American republicanism? OK, sure, but even if they did, is that really what we want? Wouldn't we all rather have the Constitution obeyed as written?