Thursday, September 5, 2024
Tuesday, September 3, 2024
Elements to a near future declaration
+++ Element 1
Federal law regulating the oath of office by government officials is divided into four parts along with an Executive Order which further defines the law for purposes of enforcement: 5 U.S.C. 3331 provides the actual text of the oath. 5 U.S.C. 3333 requires an affidavit be signed, affirming the oath has been taken, and that the individual has not/will not violate the oath during tenure of office. The third part, 5 U.S.C. 7311, makes it a federal criminal offense for anyone in government to advocate the overthrow of our constitutional form of government. The definition of advocate is further specified in Executive Order 10450 which makes it a federal criminal offense to alter our form of government by unconstitutional means. Our form of government is defined by the Constitution of the United States and can only be altered by constitutional amendment. Any act or inaction by government officials which alters our form of government by unconstitutional means is a criminal violation of 5 U.S.C. 7311. As American academics we too have sworn an oath to protect and defend the Constitution, yet something rarely mentioned about the oath is that it does not come with an instruction manual. Therefore the intention to protect and defend must be based on fact, law, logic and reason. Congressional Records are part of the Constitution as it mandates both the Senate and House maintain records. These public records show the states have cast hundreds of applications for a federal convention and one session of Congress after another has simply ignored its constitutional duty to issue the call. The Congress is altering our form of government by unconstitutional means, illegally denying the people and their states the ability to formally discuss proposals. Over the decades members of Congress and judges and scholars and professors have debated the validity of existing applications, yet there are no terms or conditions present in Article V, and no congressional legislation nor any Supreme Court ruling has ever altered that fact. The Constitution does not instruct that the states shall apply for the same subject, nor apply within a set amount of years, but that by the letter and spirit of the law, the call is based on an objective, numeric count.
During the 114th Congress US House Representative Luke Messer (6th Indiana) introduced H.R. 5306 (Article V Records Transparency Act). This would have tasked the Director of the National Archives and Records Administration (NARA) with finding and enrolling all state applications as official federal documents so they can be counted by the Congress. Placed with the House Judiciary, the resolution died without comment from either party, and has never been re-introduced. The overthrow of our form of government is not going to happen in the future, but already has happened and the crises will exist until a convention is called. Every member of the current Congress not actively engaged in the pursuit of the convention call, in their official capacity, is engaged in federal criminal activity and arguably subject to arrest.
+++ Element 2
Marbury v. Madison, 5 U.S. 137 (1803): “It cannot be presumed that any clause in the constitution is intended to be without effect.”
The convention clause of Article V is not without effect.
Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): “The government of the United States can claim no powers which are not granted to it by the Constitution.”
No branch of government has the power to question the validity of state applications for the Article V Convention because there are no terms or conditions placed upon it other than having been cast.
Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842): “[The] Court may not construe the Constitution so as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them.”
To question the validity of a state's application attempts to construe and defeat the obvious ends of the convention clause.
Dodge v. Woolsey, 59 U.S. 331 (1855): “The departments of the government are legislative, executive and judicial. They are coordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, right-fully done by either, is binding upon the others. The constitution is supreme over all of them, because the people who ratified it have made it so; consequently, any thing which may be done unauthorized by it is unlawful.”
The three branches of government are unauthorized to question the validity of a state application because the power to do so does not exist. According to Federalist 85, the saving grace of the Constitution is the prohibition of such power.
Jarrolt v. Moberly, 103 U.S. 580 (1880): “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.”
To question the validity of a state application, either through its contemporaneousness or subject matter, defeats its purpose and allows the mischief at which it is aimed to suppress.
U.S. v Sprague, 282 U.S. 716 (1931): “Where intention of words and phrases used in the Constitution is clear, there is no room for construction [re-interpretation] and no excuse for interpolation.”
Any attempt at construction or interpolation as to validity of state applications runs counter to the intention of Article V.
Ullmann v. U.S., 350 U.S. 422 (1956): “Nothing new can be put into the constitution except through the amendatory process, and nothing old can be taken out without the same process.”
Nothing in the Constitution places any stricture in any way whatsoever on the validity of state applications for a convention beyond having been cast. To limit the validity of a state's application an amendment would have to be proposed and ratified.
Ullmann v. U.S., 350 U.S. 422 (1956): “As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion.”
The constitutional guarantee to a convention is currently suffering subordination. Based on public record the Article V Convention is mandated, and each session of Congress is in violation of the Constitution until a convention is called.
+++ Element 3
According to opinion of Justice Brewer in Gulf, C&S. F. R. Co. v. Ellis, 165 U.S. 150 (1897):
The argument used by Anti-Conventionists is that Article V fails to provide operational details of a convention and because of that vagueness one should not take place despite the fact the states have legally satisfied the requirement for it. These opponents ignore that Article V is part of the Constitution, and as with all such questions, the entire Constitution is applied—every clause bears on the others and thus where details of a convention are found; this instance especially true of the 14th Amendment which in part states:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
This explains why a convention must be comprised of elected delegates, why a convention vote is conducted by state delegations rather than individual delegates, why a convention can only propose amendments based on a two thirds vote of state delegations, in addition to other questions, all protecting the people equally, regardless whether a proposal originates from Congress or the Article V Convention.
The Supreme Court has ruled members of a legal class must be treated equally under the law and any discrimination must rest on some difference bearing a reasonable and just relation, and cannot be made arbitrarily without basis. In the case of a convention, to classify it as different from Congress would mean to treat members and delegates differently under the law when there is no basis to do so because the function of both is identical—to propose amendments. The Constitution authorizes no other political body to make proposals, only a member of Congress or an Article V Delegate holds power to do so, therefore any law which applies must apply equally to both.
Delegates
The principle of equal protection extends to all aspects of the amendment process. If members of Congress suffer election to obtain power of proposal, so too must convention delegates. Indeed it would be impossible to assert otherwise as all groups associated with the amendment process (including state legislators and state ratifying delegates) consist entirely of elected members. Similarly, attempting to instruct delegates on what to consider, what to propose, and how to vote, is unconstitutional because it denies delegates equal power granted to members of Congress, not to mention protecting the people from a preset and thus bogus convention.
Election law which regulates members of Congress also applies to delegates. The lowest standard of election for members of the House is having attained the age of twenty-five, citizenship for at least seven years, and residing in state where elected. This constitutional standard becomes the election qualification for an Article V Delegate.
State Delegations
House members are elected from congressional districts apportioned in states based on population, and as those populations vary, so too do the number of their congressional districts. Consequently delegates must be elected from those same districts in order to protect the people in being equally represented. The number of delegates from each state must be equal to the number of congressional districts in the state.
Each state is equal in the convention process: each is permitted one application for a convention and one vote in ratification—a single state cannot cast 34 applications to cause a convention and a state cannot vote 38 times to ratify an amendment. In the amendment process each state has one vote regardless of population, thus making them equal. This was the major concern of delegates to the 1787 Federal Convention which gave us the Constitution itself; they wrestled over the question of equal representation in the face of varied populations and resolved the problem by creating two houses of representation—one based on state representation (the Senate) and the other on state population (the House). However, Article V mandates a convention be unicameral rather than bi-cameral—simplifying and strengthening the effect of the process as a single body is less political than two and thus more reliable.
In order that the population in each state is represented equally, delegates from each state are gathered into delegations. In this way populations are equally represented, where the delegation becomes an artificial person with a single vote; each delegation votes on proposals within itself and casts that decision as its state vote; 50 votes for each proposal, requiring two-thirds to have it legally proposed to the states. The Federal Convention of 1787 and the Congress prior to enactment of the Constitution, both used state delegations as basis of one vote.
Quorum
The operational question of quorum of a convention is again resolved by applying the 14th Amendment. In Congress the Constitution demands a quorum for either the Senate or the House to conduct business—a majority of members; fifty percent, plus one. Thus in Congress a quorum of members may vote to propose an amendment without two thirds of full membership present. And so it is in a convention, a quorum of states (26) may propose an amendment without all delegations present and conduct business as required.
In Missouri Pacific Ry. Co v State of Kansas, 258 U.S. 276 (1919) the Supreme Court ruled on the issue of quorum in relation to the amendment process of Article V. The Court quoted Speaker of the House on passage of amendment providing for election of Senators in reply to an inquiry from the floor as to whether the vote was in compliance with the two-thirds rule fixed by Constitution, member Reed said, “The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says ‘two-thirds of both houses.’ What constitutes a house? A quorum of the membership, a majority—one-half and one more. That is all that is necessary to constitute a house to do all the business that comes before it…. [I]f a quorum of the House is present, the House is constituted, and two-thirds of those voting are sufficient in order to the accomplish the object.” Therefore, as with Congress, quorum of state delegations constitutes a convention which may proceed with business.
+++ Element 4
The 14th Amendment—equal protection under the law. In sum, the populations of each state being equally affected by any enacted amendment must be equally represented. Hence, one state, one vote. Both the population within each state and the state itself must be equally represented. Hence, the delegates to a convention will be equal in number to representation in Congress. One state one vote because no portion of the population can have more "say" than any other in an amendment which affects all.
While no specific ruling has been made, the entire body of work of the Court is based on the simple principle you cannot be constitutional in one portion of our high law and unconstitutional in another. All portions of the Constitution apply to any and all constitutional questions. In federal court cases where the government was presented this argument it did not dispute it nor did judges involved take issue with it.
The Articles of Confederation were not usurped by the 1787 Federal Convention, they were "altered" according to terms of the confederation. Many parts of that original were placed anew in the Constitution. Section 13 allowed that "any question" placed before the Congress, when decided, shall be binding on all the states. When Congress voted on the question of authority that ended the matter then legally and constitutionally then and now. As to a convention writing a new constitution Article V is clear: any new constitution would have to become an amendment to the present Constitution, meaning both documents would still have affect and effect. In short the language of Article V precludes your fear as it does not allow either Congress or a convention to propose such a document. Both are limited to proposal of amendment to the present Constitution.
It is public record all 13 states ratified the Constitution. The language of the Constitution set approval by nine states for it to take effect amongst those states that ratified. In other words the language gave each state the choice to either operate under the Articles as originally written or under the Constitution. All eventually elected to join, thus effectively ending the Articles. The fact is the Constitution was ratified twice, once under terms provided in the Constitution—by the people—and once by the state legislatures as required by the Articles. It is probably the most ratified document by a people in history.
If same subject were a requirement as to validity of an application (which it is not) the states have satisfied it on four separate occasions. That information comes from official government sources, specifically the House Parliamentarian whose official duty is to know the rules of Congress and therefore under what circumstances a call would be issued. At no time has the government ever suggested applications must be on the same subject in order to "count."
This applies not only to past discussions with the Parliamentarian as well as other members of Congress, but in two federal lawsuits, one of which was appealed to the Supreme Court, and in which specifically this question was addressed to the government in that process. The government formally and officially conceded a convention call is based on a simple numeric count of applying states with no other terms or conditions whatsoever. This would not only include "same subject" but "contemporaneous" as well as so-called "rescission" applications.
The proposed Constitution was first submitted to Congress as required by the Articles. Congress voted favorably on the issue after first determining by official vote (binding on all states under terms of the Articles) that the actions of the convention were proper under the Articles. It then submitted the proposed Constitution to the state legislatures under the terms of the Articles. The legislatures held elections for delegates and funded their individual state ratifying conventions. The legislatures then reported back to Congress per the Articles after voting to accept the state convention determination as conclusive on the state. All states followed this process and all acted under the Constitution and the Articles. The vote was unanimous—as required by the Articles. Congress determined the matter was constitutional on September 21, 1787.
+++ Element 5
A central theory of Anti-Conventionists is that state legislatures can "rescind" previously submitted applications for an Article V Convention. The political benefits of this theory are obvious: “rescinding" applications prevents a convention from being called which is their stated political position. The theory of "rescission" is so central, that if this linchpin were pulled their campaign would effectively end because they have never presented any other "tool" they believe can prevent the calling of an Article V Convention.
Any discussion of so-called "rescissions" begins with the fact the public record shows before any "rescission" was submitted by the states, (1951, state of Maine), the states had submitted sufficient applications to cause two convention calls. The language of Article V is explicit: a convention call is "peremptory" meaning Congress has "no option." Therefore the applications take precedent.
According to their theory, state legislatures have the right to "rescind" that is, declare the application "null and void" at any time of their choosing after submitting the application to Congress. They accomplish this with the issuance of a new "application" announcing to Congress that previous application(s) have been rescinded. No "rescission" has ever contained instructions to Congress as to what is expected of Congress in light of the "rescission." No "rescission" has ever expressed that Congress, by the authority of the state legislature issuing the "rescission" is required to obey that "rescission."
However the implication is clear: in some fashion Congress is required to obey the "rescission" instead of the peremptory language of Article V and remove the previous application(s) from the public record or otherwise ignore the application(s). Thus, the "rescission" instructs Congress to deliberately disobey the Constitution. No "rescission" has ever presented or referenced any court ruling or state law which asserts any legal affect or effect on previous applications or that binds Congress to the determination of "rescission" announced by the state legislature. A state legislature has no authority to add terms to Article V. At the least there would have to be a provision in the state constitution enabling the demand of rescission of any federal record. No such provision exists in any state constitution. The reason for no provisions existing in state constitutions is such provisions would conflict with Article VI which describe federal laws "made in pursuance" of the Constitution, and are "Supreme Law." No provision of a state constitution is permitted to overturn such laws which include federal record laws enacted to preserve and record the constitutional acts of the United States.
There is no record of discussion in the Federal Convention of 1787 regarding states having the right to rescind federal record. There is no record of any power given to the states to prevent congressional obligation to call a convention when mandated by applications. Article V contains no language allowing state legislatures to "rescind" applications. The Supreme Court has stated no implied language exists in Article V, meaning that unless textually present, no such state authority exists.
Anti-Conventionists have never presented legal proof, that even if "rescissions" do exist, they are controlled by the states. In other words they have never answered the question of whether Congress, if granted the power of "rescission", is limited only to "rescinding" those applications the states command, or has acquired a new amendatory power which can extend to any application. The Supreme Court has stated in all aspects Congress controls of the amendatory process. On its face, such a ruling supports Congress deciding issues of "rescissions” not the states. The Constitution does not recognize the right of states to rescind federal public record.
According to procedure established in 1789 all state applications are recorded in the Congressional Record, and therefore are maintained by Congress. The applications are placed in the federal archives as federal public property. In all circumstances, according to their theory, "rescinding" an application means Congress is required to remove the application from the public record thus preventing the rescinded application from "counting" toward a convention call.
Despite their belief state legislatures can "rescind" applications for a convention, Anti-Conventionists have never sought a court ruling affirming authority of states to "rescind" and “nullify" federal public record. While some states have asserted a right to "nullify" federal law within their state boarders no state has ever enacted law asserting authority to "rescind" and "nullify" a federal record in the possession of the federal government, regardless of description.
Anti-Conventionists have never provided historic record proving states possess authority to "rescind" federal records. No text of the Constitution gives states authority to "rescind" a federal record of any description. Indeed the specific text of the Constitution directly supports the autonomy of federal records from state encroachment. Supreme Court rulings do not support the theory of "rescission” as it has ruled emphatically when states operate in the amendatory process of the Constitution, they operate under the federal Constitution not state constitutions.
In United States v Sprague, 282 U.S. 716 at 730,731 (1931), the Supreme Court stated, "The United States asserts that Article V 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…. The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition." In sum, the Supreme Court has stated the amendment process of Article V is strictly overt and contains no implications nor additions; unless the text expresses it, there is no constitutional authorization for addition (such as "rescission" or any other excuse concocted by Anti-Conventionists intended to prevent a convention call).
Despite these so-called "rescissions" public record shows Congress has never removed a single application from the federal public record. It is a federal criminal offense to unlawfully remove any record from the federal public record. Congress has never enacted any legislation allowing it to "rescind" any application for a convention call. More importantly as "rescission" clearly requires federal legislation enabling Congress to rescind applications, the authority to "rescind" (if it exists) would rests with Congress, not the states (unless by amendment the terms of the Tenth Amendment are overturned). The "authority" of states to "rescind" applications therefore appears not rest on legal case law or historic record but entirely on the credibility of the Anti-Conventionists view of the Constitution.
Argument Against Rescission
As already summarized no legal evidence exists supporting the theory of "rescission" or "nullification" of federal public record. No court rulings, federal or state laws, or constitutional text supports the purported "right" of states to "rescind" state applications for an Article V Convention call. The theory of "rescission" has no basis in law.
The text of the Constitution clearly provides the records of Congress are assigned to Congress, not the states. Article I, Section 5 requires, "Each House shall keep a journal of its proceedings, and from time to time publish the same...,"
The Tenth Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and to the people." Combined, this means the "authority" to keep a journal of congressional proceedings is textually assigned to Congress and, under the terms of the Tenth Amendment, denied to the states. The decision as to what is entered in the journal (and removed from it) is entirely controlled by Congress. States have no authority to alter that record in any manner including ordering "rescission" of any part of that federal record.
State Article V applications are recorded in the Congressional Record. Congress archives the applications as a federal public record. As specified by the Constitution and federal law this public record is regulated by Congress, not the states. Removal of federal public record is strictly prohibited by two federal criminal laws. The first, 18 USC 1001 makes it a crime to "make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry..." Without legal evidence, beginning with a provision in the Constitution or a federal court ruling making "rescissions" legally binding on Congress, their "legal affect" is a fiction and therefore materially false.
As Congress has and is now counting state applications, 18 USC 1001 applies. The law has effect however only if Congress "rescinds" state applications and does not "count" the application previously submitted by a state based on that "rescission." As the "rescission" is "materially false,” refusing to "count" an application based on such a fiction is a felony. Additionally, under federal law, members of state legislators who passed the "rescissions" and Anti-Conventionists advocating illegal removal of federal public record face criminal conspiracy charges. See 18 USC 371. This law makes it a criminal offense for two or more persons to commit any offense against the United States "in any manner or for any purpose" (such as conspiring to prevent a convention call when otherwise mandated by use of fictional documentation).
Obviously passage of resolutions in state legislatures based on a fictional legal theory qualifies under "any act to effect the object of the conspiracy" provision of the law. In any legal action the burden of proof would fall on Anti-Conventionists to prove a "rescission" or "nullification" of applications is a legally binding state power over Congress. JBS/Eagle Forum has never produced a single piece of evidence supporting the legality of so-called "rescissions."
This is not the only federal law effecting federal public record dealing with so-called "rescissions." 18 USC 2071 forbids the "willful or unlawful" removal of any public record "filed or deposited...in any public office, or with any ... public officer of the United States.” A state application sent to Congress by a state legislature is an official act of government with appropriate state seal and official state signatures. All applications state they are to be filed with Congress and officially noted in the Congressional Record. There is no question therefore state applications are "filed or deposited" with a public office (Congress), and under 18 USC 2071, if "lawful" a public record may not be removed from the records of the United States Congress.
Congress has never enacted legislation making removal of applications as directed by the state legislatures "lawful." To enact such would, at the minimum, require Congress declaring control of federal records to be in the hands of the states rather than the federal government. Such a proposition is clearly unconstitutional and therefore illegal. 18 USC 2071 is particularly stringent on members of Congress who might consider taking such action. Should any member violate that law by unlawfully removing a record of application, the law requires they shall be sentenced to three years in federal prison, forfeit their office and be disqualified from holding any office under the United States in the future. The fact no state application has ever been removed by Congress as a result of a purported "rescission" is clear evidence such removal is "unlawful." If this were not so, removal from the public record would be a matter of routine and probably be performed by the clerical staff of both houses of Congress.
Between the two federal criminal laws there is no middle ground. 18 USC 1001 makes it a federal crime to "falsify, conceal or cover up by any trick, scheme or device a material fact” or to make any "materially false, fictitious or fraudulent statement or representation." For example, asserting an insufficient count of applications based on the legal fiction that rescissions exist when material fact proves sufficient applications do exist to cause a convention call. 18 USC 2071 makes it a crime to "falsify" a record of the federal government i.e., stating an application is "rescinded" when no legal basis for such authority exists, means the application, in fact and in law, cannot be "rescinded."
In order for applications to be removed lawfully from the public record means Congress must enact legislation allowing Congress to do this. No such legislation exists. If such law did exist, it would be a federal law and hence a federal power, not a state power. There is no record of any state submitting so-called "rescissions" requesting Congress enact such legislation. Thus, any so-called "rescissions" are "unlawful."
Moreover under such a law the terms and conditions of lawful removal of applications would be established by Congress. Therefore the power to "rescind", which cannot exist except by the passage of federal legislation, would be a power of Congress not the states. The assertion that "rescission" is a state power is proved false by the requirements of federal criminal law. In order for "rescission" to exist, if it can exist, it must be a federal, not state, power.
However creation of such federal power is not possible. As already discussed, the Supreme Court has ruled there are no rules of construction in Article V. In the same ruling the court stated emphatically if the states apply, Congress must call. The Court made no exceptions to its statement; indeed as noted, it was the United States which asserted Article V was "clear in statement and in meaning." Article V does not allow for "rescission" of applications either by Congress or by the states.
The requirement, as described by Alexander Hamilton in Federalist 85 is "peremptory" meaning, as Hamilton explains, "Congress has no option." Allowing Congress the option of "rescission" is clearly not permitted. Moreover as such "rescission" would require deliberation by Congress with the object of refusing to call when a convention call is mandated, such action is clear violation of Article V as stated in Congress in May, 1787.
There is no constitutional basis on which Congress may enact legislation enabling it to rescind any application. This would permit Congress the ability to avoid calling a convention when it would otherwise be required to do so. This fact also means the states cannot limit a convention to a single topic of discussion (thus restricting a convention call to a time when sufficient applications on that particular subject exist), or place time limits on the effect of an application. In each case such a provision defeats the "peremptory" requirement of Article V giving Congress the ability to refuse to call when otherwise required to do so.
Thus any terms, conditions or circumstances in an application other than instructing Congress call a convention are null and void because they violate the "peremptory" principle expressed in the Constitution of "Congress...shall call a convention..." In sum, the "peremptory" ruling means Congress is only concerned with how many states submit applications; the contents of the applications are reserved for a convention to address.
A second obstacle to creation of a federal law rescinding applications is the Hollingsworth doctrine. This doctrine refers to a Supreme Court ruling, Hollingsworth v Virginia, 3 U.S. 378 (1798). There the Court determined the President "has nothing to do with the proposition, or adoption, of amendments to the Constitution" and that his "negative" [veto] "applies only to the ordinary cases of legislation." Without question, legislation granting Congress authority to "rescind" applications, such that an entire provision of amendatory process may be thwarted, clearly has "to do with the proposition...of amendments to the Constitution." Therefore the Hollingsworth doctrine prevents enactment of legislation required to lawfully permit "rescissions" of states applications.
Finally Article V grants no state authority over another state's application. The public record shows the states have submitted 11 sets of applications each consisting of the necessary two thirds applications. Several of these sets were submitted to Congress prior to the start of the Anti-Conventionists campaign for recessions beginning in the 1980s. Thus, before they asserted states could "rescind" applications, the applications already submitted required Congress call several conventions. As the call is "peremptory" on Congress, so too is the requirement "peremptory" on the states, meaning they have no option. Thus the states can take no action which presents Congress "an option" not to call a convention where otherwise it is obligated to do so. Presenting a "rescission" provides Congress an option.
Article V precludes any "rescission" prior to two thirds submission by the state legislatures. Article V precludes "rescission" of an application after two thirds submission by the state legislatures. Therefore the Constitution grants no authority under any circumstance to the states to "rescind" state applications (and thus creating estoppel of the law by preventing other states from holding a convention). The only way a state can "rescind" an application is not to cast it in the first place, or when a convention is called, decline to send a delegation.
These constitutional facts also explain why a state applications limiting discussion of amendment subjects at a convention or demanding applications be on the same amendment subject are unconstitutional. In both cases, the state in question is attempting to regulate the actions of other states, and a state has no authority to do this. As all states are equal, their access to a convention is equal. No state can prohibit another state from presenting a subject of discussion at a convention or limit the convention to only what that state (or even group of states) wishes to discuss. Such discrimination is a violation of the 14th Amendment equal protection under the law clause.
In sum, the theory of Anti-Conventionists that states have a right of "rescission" of state applications is, under the law, a fiction. Despite nearly 40 years of political effort to "rescind" applications are but political expression entirely without legal substance or effect, and perhaps criminal in advocacy. Not a single application has been "rescinded" as a result of their efforts because such is prohibited by federal law. Legally, Congress cannot ignore a state application on the basis of a fictional "rescission." All applications therefore submitted to Congress remain in full force and legal effect.
+++ Element 6
As noted by James Iredell, in the North Carolina Ratifying Convention of 1787: “The Constitution of any government which cannot be regularly amended when its defects are experienced, reduces the people to this dilemma—they must either submit to oppressions, or bring about amendments, more or less, by a civil war. Happy this, the country we live in! The Constitution before us, if adopted, can be altered with as much regularity, and as little confusion, as any act of Assembly; not, indeed, quite so easily, which would be extremely impolitic, but it is a most happy circumstance, that there is a remedy in the system itself for its own fallibility, so that alterations can without difficulty be made, agreeable to the general sense of the people.”
