19 Questions Answered
In the list below, answering a few key questions, in turn answers several others. Therefore, the answers are not in numeric order.
1. How would Delegates be selected or elected to a Constitutional Convention?
2. What authority would be responsible for determining the number of Delegates from each state?
3. What authority would be responsible for electing the Delegates to the convention?
4. Would Delegates be selected based on Population, number of Registered Voters, or along Party lines?
5. Would Delegates be selected based on race, ethnicity or gender?
6. What authority would be responsible for organizing the convention, such as committee selection, committee chairs and members, etc.?
7. How would the number of Delegates serving on any committee be selected and limited?
8. How would the Chair of the Convention be selected or elected?
9 What authority will establish the Rules of the Convention, such as setting a quorum?
10. What authority would be responsible for selecting the venue for the Convention?
11. Would proposed amendments require a two thirds majority vote for passage?
12. How would the number of votes required to pass a Constitutional Amendment be determined?
13. What would happen if the Con Con decided to write its own rules so that 2/3 of the states need not be present to get amendments passed?
14. Could a state delegation be recalled by its legislature during the convention?
15. Would non-Delegates be permitted inside the convention hall?
16. Will demonstrators be allowed and/or controlled outside the convention hall?
17. Would Congress decide to submit Con Con amendments for ratification to the state legislatures or to a state constitutional convention as permitted under Article V of the constitution?
18. Where would the Convention be held?
19. Who will fund this Convention?
A convention only requires a single set of operational answers to function if the answers are based on constitutional grounds. For most of the questions, a simple, straightforward response, "just like Congress" suffices. In fact, under the terms of the 14th Amendment, no other response is possible. The Supreme Court has repeatedly ruled citizens within a legal class require equality under the law. Convention delegates and members of Congress, as the only citizens empowered to propose amendments, form a legal class. Further, members of Congress and convention delegates represent citizens requiring equal treatment under the law. As matter of law then, delegates and members of Congress must be treated equally. Thus, if one part of the legal class suffers election, then election applies to the entire class. If a law regulates one part, the law also equally applies to the rest of the class.
This principle of equality answers several of the questions. Question #3, for example, requires an answer everyone should already know. The authority responsible for electing delegates to a convention is the authority of the people, just like Congress. This then answers questions 4 and 5. First, as is well known to anyone in this country, the days of election based on race, ethnicity or gender has long since passed in this country. Therefore, the answer is no such conditions have any place in the election of delegates. Numerous federal and state laws ensure this fact, just like Congress. As to Question #4, all members of Congress are elected based on population, not by number of registered voters and certainly not party lines. True, a majority of registered voters voting for a candidate ensures their election, and true most candidates are members of one or the other party--nevertheless, the basis of elections is population. Therefore, just like Congress, delegate election is based on population.
The election will be by election in House of Representative districts. The basis of this conclusion is constitutional qualifications of age, citizenship, and habitation for a house seat are the lowest in the Constitution. To require a convention delegate to satisfy a higher standard than the lowest possible for a member of Congress is discrimination. Therefore, delegate election is based on the standards set for the House of Representatives. As such, election is based on population within the state; each state delegation contains a different number of individuals each representing a certain portion of population within that state.
However, when the state delegation arrives at the convention, that delegation must be equal with all other state delegations. Again, the principle of the 14th Amendment prevails. No state can be more equal than another state or more expressly, the citizens of any one state cannot enjoy more privilege or immunity than the citizens of any other state. Thus, under the terms of the Constitution, the voting power of each state must be equal. Hence, each state delegation receives a single vote. Each state delegation will vote among its membership to determine the outcome of that vote. In this manner therefore, representation for all citizens as well as states is equal at the convention. This answers Question #2.
Questions 6, 7, 8 and part of 9 are answered by the fact that just like Congress, the convention has the constitutional as well as inherent right to determine its rules and select its officers. This fact, established in the Constitution for Congress, must equally apply to the convention. Thus, the authority for organization lies within the convention itself, just as is with Congress. However, just like Congress, those rules are subject to the terms of the Constitution. As with most organizations, the convention will use Robert's Rules of Order to begin the organization process and will develop from that origin.
Questions 9 and 14 contain references regarding a state withdrawing its delegation. There is no such authorization in the Constitution enabling the state to remove a member of Congress by recall. Removal of a member of Congress is either by resignation or election defeat. There is no recall of a member of Congress. The same rule applies to delegates to a convention; no recall.
As to setting quorum (referred to in Question #9), the word itself defines the term of quorum for the convention. The definition of a quorum is one half plus one of the total voting members present to conduct business. In this case, therefore, twenty-six state delegations (with each state delegation having quorum within it) must be present for the convention to conduct its business. Just as Congress is under a constitutional quorum requirement in order to conduct business, the 14th Amendment mandates the same restriction on the convention.
Questions 10 and 18 deal with venue, a term usually associated with judicial proceedings, which a convention clearly is not. The word venue refers to the location of a court, or, in this case, the location of the convention. The Constitution is clear on this point. It is the expressed responsibility of Congress to issue a convention call. A "call" is defined as establishing a "time and a place" for a meeting. Congress did this when it called the 1787 Federal Convention. The call specified the convention be held in Philadelphia beginning in May 1787. Under the terms of the Constitution, Congress retains this power and responsibility. The power of call however is extremely limited. Setting the time and place of a meeting does not grant Congress the right to set the agenda of the convention, appoint its officers, veto its amendment proposals or attempt other controls proposed in congressional legislation of the past. It expressly means Congress issues a call naming the time and place for the convention and nothing else.
Questions 10, 11, 12 and 13 deal with votes by the convention for proposed amendments. The answer to Question #11 is obvious. Article V mandates that proposal of amendment for Congress is by two-thirds vote (assuming a quorum of membership in each house). The same must apply to a convention under the principle of the 14th Amendment. Thus, two-thirds of the state delegations present (assuming a quorum) must propose the amendment. Therefore the answer is, yes a proposed amendment must receive two-thirds vote (assuming a quorum) from the convention in order to be proposed. This answer in turn answers questions 12 and 13.
Last edited by John De Herrera; 05-01-2013 at 09:58 PM.
19 Questions (continued)
The answer to Question #12 is just like Congress, the use of simple arithmetic determines the number of votes required to pass an amendment. Assuming all state delegations are present, the required vote is 34 state delegations. However, just like Congress, the Supreme Court has ruled that not all members of Congress must be present in order to propose amendment. The courts have expressly and repeatedly ruled Congress operates under a quorum rule. Therefore, if a quorum is present, the number of members required to pass a proposed amendment is two-thirds of that quorum or two-thirds of total membership present assuming the number of members present is more than a quorum but less than full membership in attendance.
Just like Congress, therefore, a convention could constitutionally pass an amendment with as few as 19 state delegations in attendance (26 being a quorum, two-thirds of that being 19). However, just like Congress, this is nearly impossible both politically and constitutionally. Just like Congress, absent state delegations can be compelled to attend the convention as amendment opponents would compel all state delegations to attend and, just like Congress, the opposition would quickly come to the floor making political stunts impossible. The answer to Question #13 is the Supreme Court has repeatedly ruled a house of Congress can pass an amendment provided a quorum exists in the house. The convention, just like Congress, is bound to obey that ruling.
Questions 15 and 16 concern keeping order at a convention. In sum, just like Congress and for that matter, as is true of any large public gathering, law enforcement will do its job; keep the peace. Obviously, the extent of this requirement depends on the actions of those requiring regulation, meaning if the crowd grows unruly law enforcement will act as they have countless times to maintain order. Further, as a convention is a federal function, the President has authority to provide such protection and security as warranted, permitting the convention to go about its constitutional task. How well the people behave and who might cause problems answers Question #15. If people behave, the convention permits spectators, just like Congress. If not, just like Congress, spectators are barred.
Question #19 concerns convention funding-specifically who will fund a convention. However, before answering the question of who will fund a convention, first requires answering what funding needs exist. Clearly, the needs determine the costs. If the needs are minimal, then so are costs. The amount of costs greatly affect the source of funding. This warrants an examination of the possible types of convention and associated costs. Only then can the issue of who funds a convention be reasonably determined.
Questions 15 and 16 clearly indicate some, if not most, envision a large body of people physically located inside a convention hall surrounded by large numbers of press and public. They obviously anticipate protests, possibly to the level of riot. In short, a typical political convention, and according to some, an Article V Convention is identical to a political convention. Each will have massive demonstrations, noisy crowds, confusion and tumult. This form of democracy, which began with the election of Andrew Jackson, strikes fear in the heart of some. Interestingly, they fail to mention conventions have produced political leaders as Abraham Lincoln, John F. Kennedy, both Roosevelts, Harry Truman and many others. Given the contributions these men have made to our nation, it appears we benefit from conventions some say we should fear.
In the analogous assumption that all conventions are alike, it fails to acknowledge a basic constitutional fact: the Article V Convention is not a political convention. The purpose of a political convention is to nominate a candidate, whose campaign is future based, i.e., what will be done in the future. The purpose of the Article V Convention is to discuss ideas, proposals and concepts and to implement them, i.e., what action occurs in the present. Thus, the political convention makes decisions based on speculation, which is most prone to emotionalism, i.e., what people want to happen rather than what will happen. Candidates at conventions make promises of emotion, promising outcomes regarding future events with no guarantee whatsoever those events will transpire as promised. The candidate has no way to ensure he can affect future events as promised, and so forced to play on emotion, making people believe they can affect the future as promised. Thus, the bases of political convention nominations are events after the convention concludes. Only after the convention concludes does the candidate become an office holder if elected to that position. Nothing during the existence of the political convention can absolutely guarantee that. It is speculation.
Unlike a political convention, the Article V Convention deals expressly and exclusively with the reality of amendment proposals, proposals that must be written before the convention concludes. In order to propose an amendment, the convention must write the amendment during its existence. Once written the amendment text cannot be altered by Congress or the states. Congress can only decide on the method of ratification; the states can only vote up or down on the proposed amendment. Thus, the convention is aware before adjournment of the circumstances of its proposal. No uncertainty exists, as is the case with a political convention. While it is true a convention cannot predict future events, nevertheless, the convention knows its proposal is what will be in the Constitution, assuming ratification. There is no speculation in this. This certainty affects all events at the convention, from debate to possible passage.
The very act of written amendment certainty coupled with the overwhelming numbers necessary to actually propose an amendment from the convention, not to mention the serious gravity associated with any amendment of the convention will cause serious debate not ruckus protest. Congress serves as the best example of this. If correct regarding the amendment procedure then to prove their point they would not cite the example of a political convention. True, there are records of strenuous civil debate regarding proposed amendments. The debates were in an atmosphere of decorum and order. There is nothing to suggest a convention will be any different.
In the discussion of convention costs this certainty means unlike a political convention, the convention is limited in its actions and its costs. All a convention can do is intake information, process it and, assuming approval in vote, propose amendments. In short, the convention will do no more than exchange information from the public to its members, exchange that information between its members and ultimately export that information in the form of proposed amendments. All necessary information is in writing. Given the requirement of thoughtful, objective thinking required to decide such a serious issue as amendment of the Constitution, the exclusive use of writing, more prone to objective rather than subjective interpretation presents the convention a distinct advantage and an additional check in its system.
It is one thing to fantasize that radical proposals, such as repeal of all constitutional rights, will dominate the convention. It is quite another to expect in the real world a delegate will actually write such an amendment proposal, i.e., repeal of all constitutional rights currently enjoyed by Americans. It is even more absurd to believe any sane American will ratify, let alone favor, by two-thirds vote in a convention such a proposal.
The compulsory writing of amendment proposals by delegates creates yet another barrier in the process. During the election campaign of delegates, the electorate will inquire of prospective delegates what amendment proposals the candidate favors. The convention deals only with amendment. Therefore, this is a certainty. The electorate will require written demonstration of what the candidate favors and judge his work. The election will actually be a referendum on the various amendment proposals, with delegates selected based on support or opposition to those proposals. Unquestionably, as is true in all elections, those with the more radical propositions will be rejected by the electorate. Thus, the electorate will eliminate radical proposals and their proponents even before the convention occurs. Only those proposals with the most popular support will survive the process. Not one state has ever proposed eliminating a single right currently enjoyed by Americans in any application which exists to date. In fact, it is the exact opposite. The states seek to increase the rights of the American people, that is, give them more rights than they currently enjoy.
19 Questions (continued)
Because a convention requires no more than exchange of written information, a convention can be virtual rather than physical. The cost savings are obvious and significant. The virtual convention also presents political advantages. The delegates can remain at residence within the districts that elected them. This makes them more available to their constituents. Thanks to the Internet, delegates could live lives more close to normal than the intrusion of a physical convention permits. A virtual convention permits constituents to keep a more stringent eye on their representative than a physical convention affords them. The virtual convention allows many in the community who cannot afford to seek office due to the loss of income associated with attending a physical convention to campaign, as they are not deprived of this income during a virtual convention. For the delegate and constituent, wherever there is a computer and Internet connection, there is the convention. Finally, the virtual convention affords a complete accuracy of convention events thus giving the public full disclosure of the events.
The choice of what kind of convention, physical versus virtual, therefore plays an important role in determination of costs. The costs of a virtual convention are minimal. Even if it was determined the convention required a site, the cost is low when compared to the millions required for a physical convention. A physical convention requires expense for security, transportation, housing, food, sanitation, rent, utilities, communications and employees to name a few, none of which exist or are much lower for a virtual convention.
The answer to the question of who funds a convention requires answering what kind of convention there is. The costs of a virtual convention are minimal. The costs in question can be borne by the delegates themselves or by use of Internet advertising posted on the site. On the other hand, a physical convention would require an investment certainly in the millions.
Who would fund the multi-millions needed for a physical convention? The first obvious answer is Congress. After this are the states, public donations and finally private funding by one or more wealthy individuals. This last possibility can be dispensed with immediately. The temptation of a single individual or individuals gaining control of a convention through private funding not accountable to public inspection or review makes this alternative unacceptable. Likewise, public donations have a place in our society, but dependence on them for funding a convention is impractical. There is no guarantee sufficient monies can be raised to cover the millions in physical convention costs. This unreliability makes this alternative unworthy of further consideration.
This leaves state or congressional funding. The latter is impractical for two reasons. First, the courts have ruled Congress is free to insert whatever terms it wishes in its appropriations. The political controls Congress can impose through its control of appropriations require no further elaboration. Second, the courts have ruled the president can have nothing to do with the amendatory process. As the Constitution mandates the president must approve any appropriation bill, this means the president would then be involved in the amendment process. So much so, that if he desired, the president can simply veto the appropriation bill and prevent a convention entirely for lack of funding. Even if Congress approved a blind grant, giving the convention a lump sum of several millions and allowed that convention to spend the money as it desired with the obvious provisions of proper accounting of expenditures and return of unspent funds, the bill is still be subject to presidential veto. Thus, congressional funding is not an option.
This leaves equal state funding for the convention. Assuming all state legislatures were amiable, the cost per state is not that high. Based on the costs of other similar events a physical convention stripped of all frills will cost 20 to 40 million dollars. This cost, split 50 ways, calculates to less than one million dollars a state. In comparison, virtual convention costs are measured in the thousands of dollars rather than the millions. It is easily the more attractive economic alternative.
Therefore, the answer to Question #19 is, depending on what kind of convention is held, physical or virtual, the delegates themselves or the states will fund it.
Finally is the answer to Question #17. Under the Constitution, the decision of whether to submit proposed amendments to either state legislatures or state conventions lies solely with Congress. Therefore, the answer to the question is yes, Congress will decide to submit the proposed amendments from a convention to the state legislatures or state conventions as prescribed by Article V. The terms for ratification whether proposed by Congress or convention are identical in either case; three-fourths approval from the states. Thus, a simple reading of Article V answers this question.
Text By Bill Walker, Co-Founder, www.FOAVC.org
Last edited by John De Herrera; 11-17-2012 at 06:55 AM.
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