How to Call an Article V Convention is a Matter of FACT, Not Opinion – and the Truth May Shock You

September 20, 2013 by
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Whether you are a proponent or an opponent of an Article V Amendment Convention, there are some irrefutable facts involved in the matter; most notably, whether or not States have the right to call a Convention, and whether or not approbation of congress is requisite for the ratification of Amendments. The truth of what Article V is, means, and represents, as well as how and by whom it’s controlled is not a matter of opinion, it’s a matter of fact. Yes, whether or not the States should call an Amendment Convention is highly debatable; but their having the power or not to do so is cut and dry; as I shall shortly prove simply by presenting a chronological sequence of the events pertaining to this topic from James Madison’s meticulous “Notes of Debates in the Federal Convention of 1787.”  You can read for yourself the debates that were had, the concerns which were raised, the measures that were adopted, and then the final text then proposed and accepted as Article V of our Constitution – and from there you will see who is correct.

 

What follows is almost verbatim from Madison’s “Notes” (save instances where I explain the situation at hand; usually contained in parentheses). It may be a bit long and dry, but it’s our duty as citizens to read and understand this stuff — especially those who have an opinion on this matter one way or the other.  After all, most arguments back-and-forth are about opinions on this matter, not facts.  And I’ll give a spoiler: what you’ll see is that;

1. the national legislature was not first considered as having the power to amend the Constitution; and

2. while it was agreed upon to ALSO give them that power, it was never given exclusively to them, nor taken from the States, or stated or implied that their approbation was requisite.

 

I’ve tried to be completely accurate, and include all discussions in the convention in this article. If I’ve missed any, it was unintentional. I did delete – for the sake of brevity, as much as is possible – discussions pertaining to other aspects of the Article V debate having nothing to do with its functionality or not seriously debated. Furthermore, I’ve provided links to the entire text of Madison’s “Notes” at the end of this article so you can examine them for yourself.

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Tuesday, 29 May, 1787, Mr. Edmund Randolph introduced 15 resolutions to start the discussions of amending the Articles of Confederation, which instead became a discussion of forming a new government at what eventually became known as the Constitutional Convention; #13 of which read:

Resolved. That provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature OUGHT NOT TO BE REQUIRED THERETO.” (Emphasis mine)

 

(The same day Mr. Charles Pinkney introduced his own set of proposals, Article 16 of which dealt with this topic. It was never debated so I’ve not included it.)

 

The topic was not discussed until Tuesday, June 5th, when Mr. Randolph’s provision #13 was taken up.  Madison’s notes state that;

Mr. Pinkney doubted the propriety or necessity of it.”

Mr. Elbridge Gerry favored it; saying “The novelty & difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the Govt. Nothing had yet happened in the States where this provision existed to prove its impropriety.” —The proposition was postponed for further consideration by a 7 – 3 vote.

 

Saturday, June 9th was the next time it was discussed:

Resolution 13. for amending the national Constitution hereafter without consent of the Natl. Legislature being considered, Several members did not see the necessity of the Resolution at all, nor the propriety of making the consent of the Natl. Legisl. unnecessary.” (Here’s the first consideration of NOT excluding the national legislature – i.e. federal government – in the process.)

 

Col. George Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be IMPROPER TO REQUIRE THE CONSENT OF THE NATL. LEGISLATURE, BECAUSE THEY MAY ABUSE THEIR POWER, AND REFUSE THEIR CONSENT ON THAT VERY ACCOUNT. The opportunity for such an abuse, may be the fault of the Constitution calling for amendmt.” (Emphasis mine. And prophetic? – do we not see this very situation living itself out today??)

 

Mr. Randolph enforced these arguments.”

 

“The words, ‘without requiring the consent of the Natl. Legislature’ were postponed. The other provision in the clause passed nem. con.” (nemine contradicente; i.e. “of one mind,” or “without dissent.” In other words, it was agreed to without dissent that there should be a process to amend, though whether or not the national legislature should be allowed to be involved required further debate.)

 

On Wednesday, June 13th, the proposals, after much debate, were reorganized into a new set of 19 articles reflecting the added and subtracted provisions– of which this topic was now the 17th:

17. Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary.”

 

However, it was not again mentioned until Monday, July 23rd, when it was resolved that: “Resolution 17. that provision ought to be made for future amendments of the Articles of Union, agreed to, nem. con.”

 

On Thursday, July 26th;

the Convention then unanimously adjourned till Monday, Augst. 6. that the Committee of detail might have time to prepare & report the Constitution” (i.e., make another new draft). After the new draft, and now the 19th Article, it read:

On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a convention for that purpose.” (NOTE: still no involvement of Congress, other than a command that they “shall call a convention.”)

 

So, on Thursday, August 30th;

Art: XIX taken up. Mr. Governor Morris suggested that the Legislature should be left at liberty to call a Convention, whenever they please. The Art: was agreed to nem: con:” (Here for the first time and without dissent, it was agreed upon that provisions should be added to allow the federal government to ALSO have means to offer amendments.)

 

On Monday, September 10th, the greatest debate yet of this subject commenced:

Mr. Gerry moved to reconsider Art XIX… This constitution he said is to be paramount to the State Constitutions. It follows hence, from this article that two thirds of the States may obtain a Convention, a majority of which can bind the Union to innovations that may subvert the State Constitutions altogether. He asked whether this was a situation proper to be run into.”

 

“Mr. Hamilton 2nded the motion, but he said with a different view from Mr. Gerry. He did not object to the consequences stated by Mr. Gerry…It had been wished by many and was much to have been desired that an easier mode of introducing amendments had been provided by the articles of the Confederation. It was equally desirable now that an easy mode should be established for supplying defects which will probably appear in the new System. The mode proposed was not adequate. The State Legislatures will not apply for alterations but with a view to increase their own powers. The NATIONAL LEGISLATURE will be the first to perceive and will be most sensible to the necessity of amendments, and OUGHT ALSO TO BE EMPOWERED, whenever two thirds of each branch should concur to call a Convention. There could be no danger in giving this power, as the people would finally decide in the case.”

 

Mr. Madison remarked on the vagueness of the terms, ‘call a Convention for the purpose,’ as sufficient reason for reconsidering the article. How was a Convention to be formed? by what rule decide? what the force of its acts? On the motion of Mr. Gerry to reconsider it passed 9 – 1; N.H. divided.”

(NOTE: detractors like to quote this remark by Madison as “proof that he was opposed.” Reading all of his personal comments proves otherwise; first off, he simply said that vague statement was “sufficient reason for reconsidering,” and reading further shows that further declarations such as “which shall be valid…when…ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof…“  were conceived to answer these matters of vagueness — all in the same day!!)

 

Mr. Sherman MOVED TO ADD to the article ‘OR THE LEGISLATURE MAY PROPOSE amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.’”

 

“Mr. Gerry 2nded the motion”

 

“Mr. Wilson then moved to insert ‘three fourths of’ before ‘the several Sts’ which was agreed to nem: con:”

 

“Mr. Madison moved to postpone the consideration of the amended proposition in order to take up the following: ‘The Legislature of the U. S. whenever two thirds of both Houses shall deem necessary, OR on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U. S.:’”

 

“Mr. Hamilton 2nded the motion.”

 

Then, on Wednesday, September 12th, the first draft resembling what eventually became the Constitution was proposed; it was renamed for the final time Article V:

The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year 1808 shall in any manner affect the 1 & 4 clauses in the 9. Section of article 1

(Here Madison attempted to allow for bypassing the necessity of a convention altogether if so desired, while also still leaving it as an option; and to simply allow the State Legislatures to propose amendments when agreed upon by 2/3 thereof — which would become effective when ratified by 3/4 thereof.)

 

On Saturday, September 15th, the discussion of this resumed for the final time:

Mr. Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of 2/3 of the States” (Here Mr. Morris & Mr. Gerry essentially rescinded Madison’s idea from their last discussion, just three days prior, of not making a convention always requisite.)

 

Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in constitutional regulations ought to be as much as possible avoided.” (Madison again argues in favor of his proposal – though it’s about to be shot down for good.)

 

The motion of Gov. Morris & Mr. Gerry was agreed to nem: con: (see the first part of the article as finally past)” – [That is not my insertion; what’s in parenthesis is in the actual text.]

 

Mr. Sherman moved to strike out of art. V. after ‘legislatures’ the words ‘of three fourths’ and so after the word ‘Conventions’ leaving future Conventions to act in this matter, like the present Conventions according to circumstances.” (Failed 7 – 3; N.H. divided)

 

Mr. Gerry moved to strike out the words ‘or by Conventions in three fourths thereof’” (Failed 10 – 1)

 

Mr. Sherman then moved to strike out art V altogether; Mr. Brearley 2nded” – (Failed 8 – 2; Del. Divided)

 

(Prohibition of changing the Representation in the Senate was also debated, agreed upon, and added.)

 

On the question to agree to the Constitution as amended. All the States ay. The Constitution was then ordered to be engrossed. and the House adjourned.”

 

So, on Monday, September 17th, 1787 – the final draft of the Constitution was presented; Article V read:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, 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, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate.”

 

So, there it is – and now, how is it “incorrect” or “misreading Article V” to propose the States call an Amendment Convention, as Mark Levin recently did in his book or as I did two years past? Again, if you want to debate such details as the efficacy of the articles he’s proposing, the “dangers” of an Amendment Convention, etc., then let’s start the debate – but to be honest I haven’t read the book yet, so I don’t know what they are exactly.  However, the proposition of the States calling a convention without the approbation of the federal government is ABSOLUTELY justified – no ifs, ands, or buts about it.

 

And for the record, I believe we must call one; and so I proposed this idea in 2011 to my Representative, Mark Pody, with one purpose only: to change the verbiage of Article V to include essentially what Madison proposed on September, 12th – allowing the States to amend without a convention, provided the amendment is proposed by 2/3 of the State Legislatures, and ratified by 3/4 thereof.

 

AND – the reason for THAT proposal, was in order for him to then offer up another proposal I wrote; with a means to establish without doubt a means for States to nullify acts of the federal government outside their enumerated powers, with a 3/5 majority concurrence — with a side advantage being the ability to offer up something as simple as “We hereby repeal the 17th Amendment”, et. al.

 

Now – here are those links, if you’d like to read the “Notes” for yourself:

Notes from Monday, May 14th 1787 – Wednesday, July 18th 1787

Notes from Thursday, July 19th 1787 – Monday, September 17th 1787

 

Comments

3 Comments on How to Call an Article V Convention is a Matter of FACT, Not Opinion – and the Truth May Shock You

  1. Brett Walker on Fri, 20th Sep 2013 11:17 am
  2. WOW! Thank you for providing easy access to that window into history. It seems clear to me now and I am going to buy Mark Levin’s book today to see if he is coming from the same perspective.

    Please keep me in the loop on other emails/ blogs you post.

    Brett

  3. Charles on Thu, 12th Dec 2013 3:32 pm
  4. This is an action whose time has come. It is the only way to address an unwilling and unresponsive Congress. We are mandated to restore our country to sanity!!

  5. Lee Douglas on Sat, 8th Mar 2014 8:10 am
  6. I wish that I had looked here before sending out my recent Email about Article V. I’d like to talk with you more about this. Thank you for the enormous amount of quality work that you have done. Lee

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