Rider, Horse & Dog: July 2024

The one and only thing the Article V Convention does is allow us to formally discuss our collective situation—as a society, a nation, and culture of freedom. Talking about things informally on the internet day-in and day-out isn’t cutting it, and lately there are OpEds from local news outlets across the country, going against calls for the Article V Convention. These OpEds relate how the Constitution is one of the finest legal documents ever conceived by humanity, perhaps even divinely inspired, and how holding a new convention today would be a disaster—we don’t have people today who are intellectually or spiritually equivalent to those who framed the Constitution. Who knows what monstrosity would come of it the Anti-Conventionists ask.

To begin with, calls for a convention are not talking about writing a new constitution, but rather gathering delegates to formally discuss the collective situation. There is no way a convention of Article V Delegates is going to convene and then tell the USA that it’s now calling the shots. Congress giving up political power to delegates? The Chief Executive and the USSC sitting idly by while delegates become unconstitutional? That’s not going to happen, and since the convention will be composed of people from across a massive country, and who don’t know each other, naturally means that at some point they'll want to get back home to family and friends. Thus, when the motion to adjourn passes, and the delegates driving/flying home, nothing will have changed for you and I, the average US citizen. We’ll still have the same Constitution we have now, still have the same Congress, same President, and same Courts. Meaning, fears of a convention altering the Constitution in any way are utterly baseless, mere figments of the imagination, cognitive dissonance of those who have a personal interest in the status quo remaining as it is, the one with billion dollar campaigns for public servants, and federal legislation often written by lobbyists.

Of all ideas the Article V Convention leaves on the table, Congress must then decide how they’re going to be vetted, either by state legislatures or state mini-convention (we used the latter mode to end Prohibition). From there the USA enters the ratification process, discovering which proposals can achieve 75%+ approval of the states. That threshold means 7.5 out of 10 Americans will have to approve before an idea has any chance of being adopted. There have been thousands of amendments proposed over the years and we’ve only adopted twenty-seven, so whatever delegates today come up with, it must have broad appeal. That said, ask yourself what could special interests, or the Koch Brothers, or George Soros, or the ACLU or ALEC, or a foreign nation, or whoever your favorite boogeyman is, propose as an amendment that citizens from across the political spectrum and all walks of life would adopt? Political polls of the past quarter century show the only thing Americans from the right and left agree on is electoral reform. Everyone agrees there’s too much private money driving public policy, and without it government is for sale. Indeed, with the advent of dark money, our government is now up for sale even to foreign governments. Underlying that is the dynamic of being traumatized every major election due to the fact we have fifty states conducting those elections in their own way. When you have lots of people all relying on each other to get the facts and get them accurately and transparently, you create a standard to reduce points of error. Would a federal standard for voting and voter registration, and/or other campaign-finance reforms be popular with Americans today? That’s what the Article V Convention process is there to answer. It is not a “constitutional convention,” nor a Convention of States (a private organization), but a principle framed into our high law, that when governance becomes detrimental to all the other principles, it’s not only a right, but a duty to enter into formal discussion. Merely posting comments to blogs and internet pages isn’t going to deliver us from current problems.

Anti-Conventionists often contend that because we’ve never convoked a convention under Article V, that there are many unanswered questions regarding how it will work. This is untrue, and they 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 are found. This is 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, and many others, all protecting the people equally regardless whether a proposal originates from the Congress or the Article V Convention. The USSC has ruled members of a legal class must be treated equally under the law, and that any discrimination must rest on some difference and cannot be made arbitrarily without basis. There must be a basis for discrimination or it’s unconstitutional. In the case of the Article V Convention, the basis to classify it as separate from Congress would mean to treat it differently under the law, but there is no basis to do so because the function of a convention and Congress 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. Any law which applies to one portion of a legal class must apply equally to both. This explains why a convention can only propose amendments based on two-thirds vote of delegations because Article V mandates Congress must do so.

The following is lifted from the opinion of Justice Brewer (Gulf, C&S. F. R. Co. v. Ellis, 165 U.S. 150 [1897]):

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 what to consider, what to propose, and how to vote, is unconstitutional because it denies delegates equal power granted to members of Congress.

Election law which regulates members of Congress applies equally 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 which are apportioned in state based on population, and as those populations vary, so too do the number of its 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 on an amendment to have it ratified). 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 convention which gave us the Constitution itself; they wrestled with 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 (which simplifies and strengthens the effect of the process because a single political body is less political and more reliable than two political bodies).

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 within state delegations where the delegation becomes an artificial person with one 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 legally propose an amendment (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 the full membership present. And so it is in a convention, a quorum of states (26) having a quorum of delegates may propose an amendment 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 Thomas Reed 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, 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 the convention which may proceed with business.

Finally, let’s remember a quote by delegate 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 its oppressions, or bring about amendments, more or less, by a civil war. Happy this, the country we live in! The Constitution before us, if it is 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.”

Our task today fellow Americans is to become educated on this subject and the history behind it. Please visit Friends of the Article V Convention at www.foavc.org

Sincerely,

John De Herrera

Co-founder FOAVC

john@cc2.org