The ins and outs of Article V of the US Constitution.

I recently posted the following on Facebook:

There is a lot of discussion regarding an Article 5 convention, or convention of the states.

A clarification is needed.

A Constitutional Convention may only be called by Congress. Congress may submit a constitutional amendment to the states, of which 3/4 must ratify. Alternately, 2/3 of the states may “apply” to Congress to hold a convention.

If Congress consents to hold a convention it is the determination of Congress to set the parameters of Amendments to be considered. It is clear that no restrictions exist as to what amendments can or cannot be considered.

Once the Convention has completed its work 3/4 of the states must ratify the amendment. It is the disposition of Congress to determine how ratification shall be completed. Two apparent alternatives are: 1) Congress may choose to have all amendments ratified jointly, or severally. 2) Congress may dictate whether the ratification process shall occur by the state legislatures or by conventions in each state. Those powers of Congress are stipulated in Article I of the Constitution.

The question for each of us to answer is whether a convention will be support by those whom we elect to Congress. The power rest solely with Congress to call such a convention, while the obligation to apply for a convention rests solely with the state legislatures.

Hope this is of assistance.

 

Background

That commentary generated a little discussion, and of course challenges to my conclusions.  I will here attempt to provide a little more detail.

By way of definition when I speak of Congress I presume both Houses, unless I state otherwise.

Furthermore, the original colonies, under the Articles of Confederation, were more of a union for defensive purposes rather than an actual unified nation, even though there was a president (Not George Washington).  Due to rebellion (See Shays Rebellion) in some states leaders at the time, particularly James Madison, sought to strengthen the union of states by creating a more powerful central government.  This should only be viewed as a need for operation improvements.

However, some advocates for a Constitutional Convention, were much more progressive toward a more “Powerful” central government.  Among those with that intent were Alexander Hamilton.  Multiple sources claim that he even preferred that the Chief Executive (president) be entitled as “King.”  They were not quite ready to fully leave all of the British customs behind them in a new nation.

Not to become too historical, but to clarify, there were generally two groups of thought;  The Federalist and the Anti-federalist.  The Federalist pursued ratification of the new Constitution, which gave the central government greater authority.  The Anti-federalists wanted to curtail centralized authority as much as reasonable.  Neither group opposed revisions to the existing compact between the colonies, just the limits on centralized power.

Hamilton was among the Federalist in persuasion.  His writings, in The Federalist Papers, reflected his own tone of wanting a stronger central authority.  Just as a personal observation I would propose that many of the “conservative voices,” quoting The Federalist Papers, of today would in fact have been Anti-federalists back then.

Rationale

Under Article V of the US Constitution (hereafter only referred to as the article) Congress was given the power to propose amendments to the Constitution, when they deemed it necessary.

Congress retained the right to:

  • Propose amendments
  • Call a convention
    • The convention was to propose amendments, not impose amendments.
  • Propose how ratification of amendments is to be conducted.
    • Such ratification could occur by
      • either the individual state legislatures, or
      • by convention within the several states.

States retained the rights to:

  • Have their respective legislatures “Apply” to Congress to convene a Convention
    • Such convention would only propose Amendment
    • Two thirds of the states must be a party to the application
      • For today that means thirty-four states.

Either by the direct congressional process, or by convention, any amendment must be ratified by three-fourths of the states.  That equates to thirty-eight states.

Now, let’s examine the sentence structure regarding the setting of a convention.

“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;…”

  • The Congress, modified by its component houses, shall propose amendments.
  • Congress may do so only upon a two-thirds vote. [This modifies congressional proposal authority]
  • The legislatures of two-thirds of the states (34) must apply to Congress to call a convention. [This modifies how amendments may be proposed, as an alternative to congressional proposal authority.  It is not a stand alone process independent of Congress]
  • The Convention may propose Amendments to the Constitution.
  • Congress must “deem it necessary” to call a convention, based upon the application of the requisite number of states. [This is a further modification of the sentence.  Congress has authority to call a convention, IF they determine it to be necessary.]
  • Three-fourths of the states must ratify any amendments.

Now to a final point.  There are two concepts in the first sentence which create a great deal of confusion.  The first is the phrase “deem it necessary.”  The second is the word “or” in the second line above.

The trouble with these two items is what they mean when used together in this sentence.  The problem stems from the use of the comma in the English language.  There are ten rules of construction for use of a comma in a compound sentence.  Only one of those rules apply:

Separate independent clauses joined by coordinating conjunctions.[1] 

The coordinating conjunctions are andbutfornororso, and yet. Independent clauses contain both a subject and a verb that function as a complete sentence.  Thus, the sentence in the Constitution (under standard English grammar) must contain a subject AND a verb for each clause.  Otherwise, it is simply a series of items dependent upon the initial subject and verb.  Let’s examine the sentence’s initial clauses, removing superfluous content..

“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…”

Here then are the two apparent clauses:

The Congress (subject) shall propose(verb) Amendments to this Constitution (predicate).

on the Application of the Legislatures of two thirds of the several States (subject).  Note there is no verb, thus making this statement a dependent rather than an independent clause.

Now, finally, the way in which this second statement becomes a independent clause (possibly a separate sentence) is to take it in it’s full context on the entire sentence to read as, “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…”

Conclusion

It is important to remember that the intention of the Constitutional Convention was to strengthen the alliance between the states, by providing needed authority to the central government.

Keep in mind that neither the people, state legislatures, Congress, nor SCOTUS are the supreme Law of the Land. The Constitution itself is the supreme Law of the Land. All judges of any court presuming authority within the central government are in fact subject to Congress. See Article III Section 1. first sentence. [2]

Only the states by a 3/4 majority may amend the Constitution (as described above), which would thereby modify the supreme Law of the Land. It is one of the checks and balances within the central government, proposed by the founders and ratified by the states. It does not diminish the powers and authority of Congress, but only makes them subject to a super majority of the states in rare cases.

Now, in conclusion, neither the authority of the states, people, or Congress is negated by the balancing of interests between those three branches of government (there are other branches also but they don’t explicitly relate to this matter).  To amend the Constitution requires them all to work together, in sync, with separate duties, to modify the Law of the Land.

The intent is to protect the nation from frivolous changes which may occur when people of nefarious designs want to push their agenda upon the entire population.[See my various discussions of Count My Vote and SB-54 in Utah.}

That Is The Way I See It.

 

  1.  https://www.brighthubeducation.com/english-homework-help/22944-the-use-of-commas-in-written-english/
2. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

 

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One thought on “The ins and outs of Article V of the US Constitution.

  1. Sam Parker, former candidate for the US Senate, presented the following response. It is worth noting, that like all conscientious US citizens, Sam and I agree on much and disagree on some issues. Although, I wholeheartedly supported Sam in his bid for the US Senate we appear to disagree regarding this subject. I hope that my rebuttals do not in any manner disparage his creditability. He is a knowledgeable and capable leader.

    Sam’s comments on Facebook were:

    “According to primary sources from several authorities of the era, Congress did NOT have an option to call (or not call) a convention if 2/3 of the states applied for such a convention.

    Evidence:

    1. Madison’s minutes from the actual constitutional convention says that the motion that passed was “to REQUIRE a Convention on application of 2/3 of the sts.” The notes further indicate that Congress would be “BOUND” by the applications.
    2. Hamilton in Federalist 85 asserts that “Congress WILL BE OBLIGED on the application…of two thirds of the states.” He goes on: “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 (Congress). And of consequence, all the declamation about the disinclination to a change vanishes in air.”
    3. Tench Coxe, who was a federalist in favor of ratifying the newly proposed constitution, wrote in the Pennsylvania Gazette in 1788, “…If two thirds of those legislatures require it, Congress MUST CALL a general convention, EVEN THOUGH they dislike the proposed amendments…”
    4. The proximate and contemporary usage of “shall” in the 2nd Amendment itself indicates that there is NO option, “the right of the people to keep and bear arms SHALL not be infringed.”

    I will attach the sources of these quotes following this comment so that every one can see for themselves that it was 100% clear to the founders and framers that there was no optionality on the part of Congress to call the Convention if 2/3 of the states applied for one. The fact is, Congress has NO discretion in this matter. They MUST call the Convention. ”

    Rebuttal:
    1. Sam Parker rightfully describes the motion to amendment Article V [following shall be my assessment as to why the amendment was offered]. However, Sam’s emphasis regarding that Congress was BOUND to comply with the states application appears to be an over emphasis.
    Governor Morris and Mr. Gerry’s motion was in fact to amend the language of A-5. Congress being bound by the application was only an expression of Madison’s opinion, as he had voiced it. Being “bound” was not voted upon nor approved. It was solely and simply opinion.
    2. Again, It must be understood that the Federalist Papers were purely expressions of support for the Constitution, in an effort to dissuade citizens from endearing themselves to the arguments of the Anti-federalists. To put it plainly, the Federalist Papers were no more decisive than any counterpoint raised within the Anti-federalist Papers and commentaries. I hesitate to raise this point of personal intrigue but Hamilton’s Character was also a scene of compromise which ultimately cost him his life. A decade and a half of personal and unsubstantiated insults of Aaron Burr resulted in Hamilton being challenged to a duel, wherein he was killed. Being an extreme liberal, even by current standards, Hamilton is worthy of questioned open-mindedness.
    4. Your interpretation of the word shall is generally accurate. However, I answered that within my post, by clarifying the grammar of the English Language.

    Now, regarding the entire clause, the Constitutional Convention of 1787 did not include the states application for a convention. It was George Mason whom commented on the absence of such a provision. He opined that it left the states out of the process.
    It is important to note that George Mason was almost fanatical about inclusion of a Bill of Rights in the original proposed Constitution. His multiple attempts to include a Bill of Rights failed. His intention with the argument for a modification of Article V language was to create an alternate pathway to insertion of a Bill of Rights.
    Even with the proposal by Governor Morris and Mr. Gerry, “Mason was still not satisfied and refused to sign the Constitution because it lacked a Bill of Rights.”
    As he promised, James Madison pushed Congress to adopt a set of Bill of Rights, subsequent to adoption of the Constitution.
    Once the Bill of Rights was adopted (ratified) not even Mason pushed for a Convention of the states, but relied almost exclusively upon how the Bill of Rights was to be enforced.

    Piecemeal quotes from the founders does not replace the bulk of their thinking, nor do the expressions of their opinions constitute public policy.

    The point of my entire commentary is neither to defend nor condemn the role of Congress in the adoption of amendments to the U.S. Constitution. The purpose is to suggest that far too much is at stake when amending the Supreme Law of the Land may be done subject to momentary whims, which a Convention of the States (under Article V appears to be). Although not done by Congressional Amendment Process the prohibition amendment was passed with support of 3/4 support of the public. Yet, within two years, 3/4 of the public was ready to repeal that amendment. Calling for an Article V Convention of the states is slightly more than anger expressing itself in a reactionary environment. That is a condition far far worse than dangers exploited by a Congress inebriated with power and self-importance.

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