Issues Regarding An Article V Convention

ADOPTION OF SINGLE SUBJECT AMENDMENT TO THE U.S. CONSTITUTION AND ISSUES REGARDING AN ARTICLE V CONVENTION

The U.S. Constitution, which is the supreme law of the land, sets out the powers of the federal government. The federal government is limited in its powers and only has those enumerated powers that are provided in the U.S. Constitution. All other rights and powers reside with “We the People” and the states pursuant to the 9th and 10th amendments to the U.S. Constitution. Furthermore, Article V gives state legislatures the ultimate governmental power (and, therefore, duty, obligation and responsibility) to control the federal government, and particularly Congress, should it act irresponsibly or overstep its power, control or authority. Specifically, and to this point, Congress can propose an amendment to the U. S. Constitution but to be adopted it must be ratified by three-fourths of the state legislatures or state conventions. More importantly, however, is the fact that two-thirds of the state legislatures can convene an Article V Convention to propose an amendment, which, to be adopted, must be ratified by three-fourths of the state legislatures or state conventions. An Article V Convention method, therefore, completely bypasses all of the federal government, and, specifically, Congress.

Article V of the United States Constitution provides in part:

“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 . . . .”

Therefore, an unlimited Article V Convention for proposing Amendments, also known as an Amendments Convention can be convened but only if 34 state legislatures pass legislation applying for an unrestricted, open, general convention to consider any and all possible amendments to the U.S. Constitution. Amazingly, several states in early U.S. history applied for an unlimited convention; however, reaching a total of 34 state legislatures making application for an unlimited convention is very unlikely to happen. In fact, most, if not all the states that have asked for an unlimited convention, have subsequently rescinded their applications for such an unlimited convention.

In regard to a limited Article V Convention, however, a limited Article V Convention can be convened but only if 34 state legislatures make application for one and specify a subject or subjects. With respect to a limited convention, the following relevant issues apply:

  1. Any state legislature today that sends an application to Congress will limit, for practical and political reasons, the Article V convention to a particular subject or specified subjects.
  2. Any state legislature today that sends an application to Congress will include language that the application “is revoked and withdrawn, nullified, and superseded to the same effect as if it had never been passed, and retroactive to the date of passage, if it is used for the purpose of calling a convention or used in support of conducting a convention to amend the Constitution of United States for any purpose other than for [stated purpose].”
  3. By the time the first Article V Convention is convened, every state legislature will certainly have enacted a state statute that provides for the method of delegate selection, duties of delegates, instructions for delegates, oath for delegates, requirement that delegates not exceed their instructions or compromise their oath, automatic removal and replacement of delegates who do not follow instructions or who compromise their oath, and in some states criminal penalties for being in violation of such statute. The Indiana Legislature passed such delegates legislation in 2013. See P.L. 182–2013, which includes a criminal penalty provision, and P.L. 183–2013 at: http://www.ncsl.org/documents/summit/summit2013/online-resources/SenDavidLong.pdf, which includes commentary. The 2014 session of the Florida Legislature passed similar legislation creating Sections 11.93 – 11.9352, Florida Statutes, and a number of other states have followed.
  4. Congress has a constitutional duty (as well as for practical and political reasons) to limit in its call the subject matter of the convention in conformance with the subject expressed in the applications submitted by the state legislatures. For the sake of argument, even if an amendment outside the call of the convention were proposed in violation of state statutory prohibition, for which criminal penalties would apply depending upon the applicable state statute, then such proposed amendment would be ultra vires and therefore would only be a recommendation considering the call of the convention by Congress and the state applications limiting the subject matter. Even without statutory law in place, it may be argued under agency law, that delegates at a convention would be agents for their principals, which are their respective state legislatures, and could not exceed their agency authority in an Article V Convention. Under agency law, in general, if an agent, however, does make recommendation(s) outside his/her authority, the principal is not bound by the recommendation(s). Furthermore, if it were even possible for a proposed amendment outside the convention call to get through, it would not be eligible for ratification. Pursuant to Article V of the U. S. Constitution, Congress specifies which ratification method will be used for any proposed amendment. Congress would have a constitutional duty to refuse to make a selection of the ratification method for any proposed amendment outside the call of the convention because it would be ultra vires and at best only a recommendation. In fact, with respect to applications to Congress for an Article V Convention, it may be argued that Congress becomes an agent for its principals, specifically the state legislatures that have applied for an Article V Convention limited to specified subject matter. If Congress, outside its authority as an agent with respect to an Article V Convention process, did select a ratification process for a proposed amendment outside the convention call, the selection and attempted ratification could be constitutionally challenged in court. If the Supreme Court ultimately ruled that Congress did not exceed its authority to select a ratification process for such proposed amendment and allowed a proposed amendment otherwise outside the call of the convention to stand for ratification, the proposed amendment, for which there is no disagreement, would still have to be ratified by three fourths of the state legislatures or state conventions as determined by Congress.
  5. Lastly, and most important, the numbers simply do not work for even consideration, much less voting, by delegates, on any subject outside the call of an Article V Convention. Specifically, an Article V Convention cannot be convened unless 34 state legislatures apply for one. These applications must address the same subject in order to be counted. Therefore, the delegates from these 34 states will be at the convention to consider only the subject matter expressed in their state’s application. In fact, these delegates will have been given instructions, will have signed an oath, will have agreed to automatic removal and replacement and, likely, will be subject to criminal penalties for even considering any subject outside the call. However, suppose, for example, that all 16 remaining states send delegates without instructions, an oath, and threat of removal, replacement and criminal penalties and, in fact, all 16 states have conspired and colluded to address other subjects. As soon as any attempt is made for consideration of a subject outside the call, any state delegate can raise a point of order to the presiding officer who will, no doubt, rule such consideration out of order. This would prevent any further consideration of the subject and the 16 delegates would not have the votes to overturn the ruling. In the unlikely event that the presiding officer allowed consideration, his/her ruling would be overturned by the 34 state delegates sent to prevent consideration of any subject outside the call.

Furthermore, questions regarding limited, unlimited or runaway Article V Conventions have been addressed and answered by constitutional attorneys, scholars, historians and legislative organizations including but not limited to the following:

  1. Robert G. Natelson – http://constitution.i2i.org/files/2014/11/Compendium-3.01.pdf. See also http://www.i2i.org/robnatelson.php, with cites to numerous documents and law review articles under the heading entitled: “*On Amending the Constitution:”
  2. James Kenneth Rogers – The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process, available at: http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No3_Rogersonline.pdf.
  3. National Conference of State Legislatures has an issue paper on its website supporting the constitutionality of a limited Article V Convention to address a balance budget amendment. See http://www.ncsl.org/Portals/1/Documents/leaders/FAQ%20for%20BBA%20NOW%20in%20PDF%20July%2016%202010.pdf. See also the document entitled, “Amending the U.S. Constitution by State-Led Convention” at: http://www.ncsl.org/documents/summit/summit2013/online-resources/SenDavidLong.pdf.
  4. American Legislative Exchange Council has a document entitled, “A Handbook for State Lawmakers” supporting the constitutionality of a limited Article V Convention. See http://www.alec.org/publications/article-v-handbook.

Considering all of the above, it would be virtually impossible for legal and practical reasons for an Article V Convention to even consider proposing an amendment outside the call of an Article V Convention much less to become a runaway convention. If any attempt were made to take an Article V Convention beyond its limits, there would be constitutional, statutory and procedural roadblocks at every step in the process. Regardless, to put all of this into perspective, Congress without any limits can at any time propose a constitutional amendment on any subject, whereas an Article V Convention can only consider proposing an amendment limited to the subject(s) in the applications of two-thirds of the state legislatures. Conceptually, Congress will always be willing to consider proposing an amendment that increases its power, control and authority, but conceptually might not be willing to consider proposing an amendment that would remove an element of power, control or authority. The framers of our United States Constitution recognized this and the result is the provision for convening an Article V Convention when two-thirds of the state legislatures make the required applications. It is important to note that Congress has received over 700 applications for convening an Article V Convention since the ratification of our U. S. Constitution. (See https://en.wikipedia.org/wiki/List_of_state_applications_for_an_Article_V_Convention.) These applications have generally been limited to different and various subjects. Some earlier applications even call for an Article V Convention unlimited as to its subject but most if not all of these have been rescinded. However, at no time has the number of applications for a particular subject or subjects reached the required number. The fact that Congress has not called an Article V Convention, and that courts have rejected all attempts to force Congress to call such a convention, has been cited as persuasive evidence that applications can and must address a specified subject or subjects in order to be counted.

There may never be a need to actually convene an Article V Convention given the ability of “We the People” through their respective state legislatures to threaten one. The framers of our Constitution were exceptionally astute to devise an Article V Amendments Convention method to keep our federal government, in particular, Congress, from acting irresponsibly (e.g., bankrupting our country through the use of riders, pork barrel spending, logrolling and earmarking) and/or overstepping its enumerated powers at the expense of not only “We the People” but also the States, both of whom, pursuant to Amendments 9 and 10, retain all other rights and powers, not reserved to the federal government. The state legislatures, pursuant to Article V, provide the ultimate governmental power in our country even though an Article V Convention has never had to be convened. The threat of one, however, has produced Amendments 1 – 10, our Bill of Rights, and most recently the Seventeenth Amendment, which established the popular election of United States Senators by the people of the states.

The time has come to add another amendment to the U.S. Constitution. Forty-one state constitutions prohibit the use of riders in state legislation, but a single subject requirement, applicable to federal legislation, is missing in the U.S. Constitution. Adoption of this amendment would have a profound and positive impact on the way Congress conducts its business. A federal single subject amendment would provide the means to limit pork barrel spending, control the phenomenon of legislating through riders, limit omnibus legislation produced by logrolling, prevent public surprise, and increase the institutional accountability of Congress and its members.[1] Congress will be able to conduct its business in a more productive, efficient, transparent, and less acrimonious way with a single subject requirement.

To this end, a nonprofit, nonpartisan organization, Single Subject Amendment, was founded in 2013 to pursue adoption of this amendment. At its request, a bill has been introduced in the 115th Congress, H.J.Res. 25 by Congressman Tom Marino, which proposes a single subject amendment to the U.S. Constitution. Since it is very unlikely Congress will pass this bill until it is forced to, Single Subject Amendment is pursuing an Article V Convention and through its efforts the Florida Legislature passed CS/HM 261, by Representative Halsey Beshears, which makes application for the convening of an Article V Convention for the limited purpose of proposing a single subject amendment. When the number of state legislatures that pass our bill approaches the required number of thirty-four, Congress will then take up and pass our federal bill in order to prevent having to convene an Article V Convention.

It is now time for each state legislature to accept its duty, obligation and responsibility to fix what is broken in Washington, DC. It should be noted that “We the People” and our country are not the Federal Government of America, we are the United States of America.

W. S. “Spider” Webb, Jr., J.D., CEO and Founder Single Subject Amendment, a Super PAC http://SingleSubjectAmendment.com

  1. Brannon P. Denning & Brooks R. Smith, Uneasy Riders: The Case for a Truth-in-Legislation Amendment, 1999 Utah L. Rev. 957, 968 (1999)