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Despite a 14 page opinion of judicial diatribe which could have written with a single word— “remanded,” Maryland attorney Montgomery Sibley won the first round in his Article V Convention lawsuit against defendants Senate Majority Leader Mitch McConnell, and Speaker of the House John Boehner this week. Boehner, who has announced his resignation from Congress, remains a named defendant until a new Speaker of the House is elected. Under federal court rules the new speaker will be automatically substituted as a named defendant for Boehner. Sibley‘s suit seeks a court ordered mandamus requiring McConnell and Boehner as respective leaders of the Senate and House to call an Article V Convention as required by Article V of the United States Constitution. 

The pro-se suit was originally filed in April of this year in Superior Court for the District of Columbia, Civil Division. Defendants, McConnell and Boehner, through government lawyers, immediately opposed the suit showing no indication from their opening statements of even considering constitutional obedience and calling a convention as mandated by the Constitution. In an obvious attempt at dismissal government lawyers remanded (moved from one court jurisdiction to another) the suit from Superior Court for the District of Columbia to the United States District Court for the District of Columbia. Under federal law (28 USC 1441, 1442, 1446) remand was automatic. However Sibley challenged the remand under provisions of the same federal law (28 USC 1447). As described in previous stories the purpose of the McConnell/Boehner remand was to have the District Court dismiss the suit entirely based on the fact Sibley had no standing to sue. Standing to sue is a federal court doctrine in which federal courts require a plaintiff to satisfy certain court created standards before the court assumes jurisdiction to rule on the merits of the case. The government and the federal courts rely heavily on lack of standing to dismiss citizens’ actions the government does not want to argue on merits. 

Despite the fact both the Superior Court and District Court are federal courts created by federal law and both have jurisdiction in the District of Columbia, federal law specifies the Superior Court as a “state” court. As such this Court does not require standing to sue as only “federal” courts have this rule. The problem for the defendants was Sibley admitted from the beginning of his lawsuit he lacked standing. Thus, under the provision of the same law used by McConnell/Boehner to remand the suit to District Court, District Court Judge James Boasberg was forced to remand the case back to Superior Court. As noted by Boasberg in his ruling, the law is peremptory, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded [back to “state” court].” [Emphasis in original]. 

The suit is the third in United States history. The first two, Walker v United States (2000) and Walker v Members of Congress (2004) were filed by this author. The latter suit, Walker v Members of Congress (all members of Congress voluntarily joining against the suit including Boehner and McConnell) was appealed to the Supreme Court. The Court denied certiorari but not before the Solicitor General of the United States, attorney of record for Congress, admitted formally several statements made in my pleading were correct as to fact and law. Court rules mandated the Solicitor General of the United States, who represented all members of Congress, either refute or agree to all statements made by me before the Court ruled on certiorari. The Solicitor General waived the right to respond meaning under court rules he found no fault in the statements of law or fact expressed in the lawsuit. 

Judge Boasberg spent pages blasting Sibley in regards to his suit as well as his personal history but in the end was forced to grant the remand as federal law mandated this as it employed the word preemptive “shall”. While it was obvious from his opinion the judge would have given anything to have dismissed the suit, even he was forced to bow to the peremptory effect of the word “shall” in federal law. 

The problem Judge Boasberg failed to realize is by ruling the Court and defendants McConnell and Boehner were bound by the peremptory word “shall” as used in law he was, in fact, ruling on the key issue of the entire case, a fact certainly not lost on Sibley. The Constitution uses the identical word “shall” to describe the “peremptory” act by Congress that is Congress “shall” call an Article V Convention. If anything, the word “shall” in the Constitution has more authority than when used in statute. Thus by admitting the word “shall” binds the Court and the defendants to a specific action, however undesired, Judge Boasberg in fact ruled on the peremptory power of that word and its legal authority as well as the obligation of the defendants to obey that word. Thus, in spite of his saying Sibley lacked standing, Boasberg actually made a ruling. Interestingly the same thing occurred in my lawsuits when District Court Judge Coughenour ruled I lacked standing then ruled the convention application process was subject to the Coleman doctrine, a position never before expressed by a federal court. 

As the word “peremptory” basically means no excuse allowed whatsoever, the fact Sibley lacks standing or any other objection defendants care to assert, is irrelevant as the peremptory requirement of the Constitution expressed through the word “shall” renders all of them unconstitutional and equally applies (“It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.”) to Congress and the Court. All that remains for Sibley is present this fact to the Superior Court along with the ample evidence that (1) the states have applied in sufficient number to cause a convention call; (2) the call is based on a numeric count of applying states with no other terms or conditions; (3) that because no vote, debate or even a committee is permitted (See: General Annals of Congress 1 (J. Gales Ed.) Pg 00257-258 Yr 1789 , Pg 00259-00259 , and Pg 00261-00262) by Congress thus allowing it to escape its ministerial peremptory duty suing any member of Congress is sufficient to cause the call and; (4) in 1789 Congress established a procedure where it is to be notified when a sufficient number of applications have been filed by the states and the two defendant officers have within their power as officers of Congress the ability to request such information. (See Senate Rule 7—“On each legislative day after the Journal is read, the Presiding Officer on demand of any Senator shall lay before the Senate messages from the President, reports and communications from the heads of Departments, and other communications addressed to the Senate, and such bills, joint resolutions, and other messages from the House of Representatives as may remain upon his table from any previous day's session undisposed of. The Presiding Officer on demand of any Senator shall then call for, in the following order: The presentation of petitions and memorials.” (All applications by the states have been filed by Congress as memorials). House Rule VII: “Receipt of Referral of Measures and Matters Messages 1. Messages received from the Senate or the President, shall be entered on the Journal and published in the Congressional Record of the proceedings that day. Referral 2. (a) The Speaker shall refer each bill, resolution, or other matter that relates to a subject listed under a standing committee named in clause 1 of rule X in accordance with the provisions of this clause … (6) may make such other provision as may be considered appropriate.” As the 1789 Congress precluded a convention call being submitted to a committee of Congress, clearly the only official empowered by the rules of the House to “make such other provision as may be considered appropriate” is the Speaker of the House. Congress also made provision in 1789 that the applications be sent to the national archives. (In a related side note I recently submitted a petition for rulemaking to the NARA for the purpose of establishing formal notification to Congress by NARA of the record of applications submitted by the states). 

Judge Boasberg’s opinion demonstrates he did not properly research the facts. Obviously a federal judge is supposed aware of the content of the United States Constitution. Any judge that is not aware should, in the interest of justice, resign his office for incompetence. Judge Boasberg seems a candidate for resignation as he repeatedly makes factual errors in regards to the Constitution. Fox example, throughout his opinion he refers to an Article V Convention as a “constitutional convention.” While the terms “Article V Convention” and “amendments convention” commonly used in connection with Article V of the United States Constitution may not be precise, they do describe the essence of the actual words in Article V, “convention for proposing amendments.” The words are simultaneously self-limiting and descriptive. The convention’s purpose is singular—the proposal of amendments by convention to the United States Constitution. There is no such thing as a “constitutional convention” in the Constitution. Therefore any use of such term given that legal dictionaries define a “constitutional convention” as meaning a convention intended to create a new constitution, is clearly demonstrative of the ignorance of the person employing the term when his referring to the convention described in Article V especially when the provision of Article V (“…to this Constitution…”) preclude such an interpretation as the language mandates that even if a convention (or Congress as it has identical proposal power) does propose a new constitution it would be an adjunct to our present Constitution, an impossible scenario. These terms are simply two different legal creatures and are neither mutual nor interchangeable. Judge Boasberg demonstrates his legal ignorance when he mixes them or worse yet labels an Article V Convention as a constitutional convention. 

On first page of his opinion the judge refers to Federalist 85 quoting Alexander Hamilton who discussed the obligation of Congress to call a convention. The judge quotes the text but obviously does not believe it as he then spends almost the entire 14 pages blasting Sibley for holding the exact same view the judge himself quotes. Like many people opposed to a convention the judge attempts to slime in the proposition applications must be on the identical amendment subject (usually referred to as “same subject) in order to “count” meaning if Congress determines the applications are not on the same subject it is not obligated to call a convention. 

But the judge’s own action in his ruling disproves his position by making clear the peremptory obligation of the word “shall”. An action cannot be peremptory if the party at which the peremptory act is intended possesses an option not to perform the act. Granting Congress the power to define applications beyond the basic numeric count called for in Article V provides such an option and therefore is unconstitutional. Further, Judge Boasberg ignored relevant federal court rulings. As the judge refers to two items on page one, neither of which were mentioned by either party during their briefs, obviously the judge did research (or more likely had his clerk do the legwork). At the minimum relevant decisions by the Supreme Court should have been consulted. The fact Congress must call a convention has been stated by the Supreme Court no less than four times throughout its history; all of the decisions have been unanimous opinions by the Court. 

Most relevant to this point is United States v Sprague in which the Supreme Court not only expressly stated Congress must call a convention but went on to express that Article V cannot suffer “rules of construction, interpolation or addition.” [Emphasis added]. Simply put this means the Supreme Court was telling all other judges that what you see is what you get and what is is what is. Obviously this judge didn’t get the memo. He used same subject as the basis to state, “None of these efforts [at a convention call] has been successful” without bothering to explain why they have been “unsuccessful.” 

An explanation of why “these efforts” have not been “successful” can be succinctly expressed: Congress has deliberately and willfully ignored the Constitution and refused to call a convention. Until recently Congress didn’t even have a list of applications available to them to know when the states had applied. The first tentative attempt by Congress in history at creating a list began this year but its progress has been appallingly slow. A full and complete list of the 766 applications from 49 states can be read the FOAVC website. 

Judge Boasberg’s suggested Sibley’s correct reading of the Constitution was incorrect. Thus when Sibley read Article V at face value as required by Sprague such that when the Constitution says “on the application of two-thirds of the several state legislatures” it means “on the application of two-thirds of the several state legislatures” this meant something else other than a numeric ratio of all states to some of the states with nothing else added. It has always been interesting to me how people can read every other numeric ratio used the Constitution and correctly state it to be a ratio of some part to the whole (with no other interpretation) but when it comes Article V and the convention suddenly this numeric ratio means everything but a ratio of the part to the whole. While he did not say it directly obviously the judge questioned Sibley’s application evidence. Had he bothered to do his homework the judge would have discovered the source of the 35 applications Sibley provided in his lawsuit; the FOAVC list of 766 applications from 49 states taken directly from official government documents, namely the Congressional Record. Had he even read the relevant Supreme Court rulings he would have known how to correctly interpret the evidence and even this federal judge has to know two thirds of 50 is 34 and 49 is greater than 34 meaning the states have satisfied the requirement making a call peremptory on all members of Congress—including McConnell and Boehner. 

But the matter does not stop there. Examination of the public record shows at least three same subject issues (repeal of federal income tax—39 states; apportionment—38 states and balanced budget—36 states) have already reached and exceeded the two thirds mark. Thus regardless of whether Sibley is correct or the judge is correct, a convention is mandated. 

The Founders clearly state a convention call is based on the number of applying states as the references already provided to the May 5, 1787 congressional record proves. Indeed as already shown, the public record proves Congress itself has reached this conclusion with publication of its 1930 report regarding applications. Indeed there is no record whatsoever supporting the assertion that the Founders, Congress or the courts have held any position but that the trigger cause for a convention call is a numeric count of applying states. 

At the end of this short, inaccurate discussion of applications, Judge Boasberg then concedes the argument by stating “This Court has no opportunity to determine whether Sibley’s quest is quixotic; as he concedes he has no Article III standing, remand is the only appropriate outcome.” Bluntly, the judge could have ended his opinion at this point but instead choose to employ irrelevant personal attacks against Sibley. 

The judge spends the next several paragraphs beginning on page 2 discussing Sibley’s previous legal history of court filings none of which have anything to with the current issue as none relates to it. In other words, he attempts to smear Sibley’s reputation and implies that the present lawsuit is part of Sibley’s “unmeritorious lawsuit” history. While I will not comment on these prior lawsuits as I have not read them, I can only observe in this case at least Sibley presents irrefutable public record—irrefutable in that neither the defendants nor the judge are able to present any evidence which refutes Sibley’s statement that the states have applied in sufficient number to cause a convention call. Thus if the courts ultimately reject Sibley’s suit it will be more than meritorious. Its outcome will decide whether the government has to obey the Constitution. The judge assumes but presents no court ruling backing his assumption of same subject. The reason is there is no record which disproves numeric count in United States history. If there were convention opponents would have long since used it and the judge obviously would have referred to it. 

The judge then reviews the facts of the case and then moves to discuss legal standards. He then cites several federal cases all of which mandate that the Court must “treat the complaint’s factual allegation as true…and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.” Thus, despite the best effort of the judge unless defendants can prove with factual evidence Sibley’s assertion of numeric count is factually incorrect or his presumption regarding count methodology is incorrect, it must be accepted as true. 

The judge discusses briefly the arguments of the defendants which are (1) Sibley lacks standing and therefore the court has no jurisdiction to hear the case and must therefore dismiss; (2) the Speech and Debate Clause of the Constitution “blocks Plaintiff’s claims ‘because they arise out of an alleged failure to take legislative action’; (3) the question is barred due to the political question doctrine. 

It should be noted defendants McConnell/Boehner did not assert Coleman v Miller which was somewhat surprising as their lawyers could then have simply said, “the Court has said we have total control of the amendment process and therefore you (the Court) have nothing to say about it.” No doubt however this argument will arise. What is more interesting the argument regarding the “legislative” act. Simply put, a call is not a legislative act. In Hollingsworth v Virginia the Supreme Court eliminated the President from the amendment process stating the amendment process was not ordinary legislation and therefore the president shall have no part of it. Without presidential participation (which is to say presidential review and possible veto) Congress cannot pass legislation. Moreover Article V does not grant legislative powers to Congress in regards to call. Now this is not to say Congress cannot by rule or legislation create a process for the operational aspects of a convention (such as how applications are processed in Congress and other pragmatic issues related to a convention) as this is necessary to facilitate the peremptory call. What it means Congress cannot legislatively regulate a convention and prevent its calling by means of a presidential veto or attempt to control convention agenda, delegate selection or predetermination of an amendment proposal because they lack legislative authority to do so. The convention agenda, delegate selection and probable outcome is established by the people when they elect convention delegates who have sought office based on their position regarding amendment proposals not by a cabal of politicians in a smoke filled room. 

“The text of the removal statue is unequivocal: it instructs that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction the call case shall [sic] be remanded.” Despite his finding the text of federal law “unequivocal Judge Boasberg next attempted to assert because he believed the case to “futile” it could be dismissed without remand (thus ignoring the federal law entirely) but that “[t]he circuits [federal appeals courts] are split” on the question. Thus the courts are “split” on whether an explicit federal law should be obeyed as written or ignored based on the opinion of a judge who feels a particular case is “futile” without bothering with the cumbersome but constitutionally required process of congressional revision of the statute. The problem is, in reaching such a conclusion the court is, in fact, ruling on the merits of the case finding it “futile” meaning the court holds it can ignore its own standing to sue doctrine entirely and rule anyway. I can think nothing else that so clearly demonstrates the hypocrisy of the doctrine of standing than this attempt by Judge Boasberg. 

The fact is the Constitution is as unequivocal as the statute and therefore presents the same identical question of obedience to the Superior Court. It will be interesting to see in upcoming litigation how the Court handles this question—not one of obedience by the government to a federal law but outright obedience to the entire Constitution. Not only is the word “shall” used in Article V but throughout the Constitution. Indeed the preemptive word “shall” is responsible for causing compliance by the government to every provision in the document. Thus, all provisions of the Constitution using the word “shall” are peremptory. Establish anywhere in that document the word “shall” can be disregarded by the government and you’ve destroyed the entire Constitution as it becomes nothing more than an “advisory” opinion from some long dead colonial leaders. To give an idea of the effect on the Constitution if the word “shall” is nullified—according to one source the word “shall” is used 185 times in the Constitution with all usage denoting either a prescribed limit or required action. Hence 185 provisions of the Constitution will be nullified if Sibley loses his battle over the word “shall.” 

Now that the case has been remanded to Superior Court and assuming the government doesn’t attempt to waste countless tax dollars in an useless appeal hoping that federal appeals court judges can’t read the law, a logical question is how will the case proceed. Sibley has already indicated in previously filed papers that he desires a jury trial (and thus testimony by the defendants). Whether this occurs remains to be seen. But what arguments will both sides present? Obviously the government will again attempt to raise the issue of standing hoping for a home run of dismissal without having to address the merits of the issue—primarily the fact the peremptory word “shall” as used both in the federal law and the Constitution defeats their case. Unfortunately for the government the judge’s ruling makes that impossible as both sides will have no choice but to refer to it in the record meaning whether raised by Sibley or the defendants, the fact “shall” is peremptory and thus excludes all excuses offered is bound to come up. 

The next tactic of the government will be to assert Coleman v Miller much as they did in my two lawsuits. But Sibley has two alternatives which were not open to me in my suits. First, he has a published public record proving the states have applied in sufficient number to cause a convention call. I only had an article from a law review which, while it listed the applications, did not present the irrefutable proof of publication which Sibley, thanks to FOAVC gathering the applications from public record, now exists. While the judge attempted to slant this evidence it was not refuted as inaccurate meaning both judge and government concede the states have satisfied the terms of Article V. 

Second, if the government uses Coleman it may backfire on them. It will open the door for a discussion of the doctrine of standing in general if Sibley desires. Standing to sue relates to the court having jurisdiction over a case. Over the years the courts have evolved a series of tests, none of which are supported by constitutional language and more importantly, none of which are authorized by act of Congress. For under the Constitution it is Congress, not the courts that establish court jurisdiction. Thus any determination of what constitutes standing is a legislative act not a judicial one. But Congress is prohibited by the Constitution from setting such standards which is why they have never passing a standing to sue law. Moreover, the courts have always based their doctrine of standing on the “cases and controversies” clause of Article III. The problem with this is the 11th Amendment (and the 7th Amendment) introduced the word “suits” into the Constitution. A suit is neither a controversy nor a case. Each term has a different legal definition. 

Thus, the doctrine of standing, which has never addressed the third form of legal appeal allowed in the Constitution, a suit, is constitutionally lacking. Indeed it could be argued that the word “suit” being in the amendments, altered the words of the Constitution and removed the terms “cases” and “controversies” from its text. So basically what is stated in the Constitution is the only “standing” the court can enforce. If a party satisfies any of the listed jurisdictions (those found in Article III, Section 2) in Article III they have satisfied the only constitutional standing there is. So while a case may be a suit, the fact the word “suit” is specifically described in the Constitution meaning it is clearly delineated from inclusion as a case or a controversy. Basically a “suit” refers to the “redress of any injury or the enforcement of a right.” 

Obviously the people have the “right of alter or abolish” as guaranteed in the Declaration of Independence and agreed to by treaty thus making it law of the land under the terms of the Constitution. The fact this right is being denied by Congress by denying the people a convention and allowing that convention to propose amendments to the Constitution. Thus Sibley’s action is most properly a suit which has never been included in the doctrine of standing by the courts and therefore must be presumed not be subject to that doctrine. 

Further Coleman (See page 457 of the opinion) grants Congress extraordinary powers as the Court determined a ratification vote contrary to congressional desire is an act of rebellion. Thus the Court authorized Congress to seize power of the military from the President and employ that military to remove state legislatures and replace those legislatures with people of congressional choosing in order to achieve a desired ratification vote. The Court said despite these powers stated Congress must obey the Constitution. One can only assume therefore if Congress uses these powers it is obeying the Constitution according to the Supreme Court. Indeed Coleman states Congress has “absolute” control over the amendment process under what is termed the political question doctrine. Finally the Court stated any opinion given by the Court regarding the amendment process is an “advisory” opinion. The problem for the government is an “advisory” opinion does not require standing. Sibley can request the Court give him an opinion, albeit advisory, and entirely sidestep the issue of standing if he chooses to raise Coleman or the government does him a favor and brings it up themselves. 

Given the issue comes down to documented public record which favors Sibley if the suit goes to merits (and you can bet the government will expend every effort to avoid that happening) the defendants will lose. However don’t look for a convention that soon—no doubt the government will appeal. In short, while it will be a long battle Sibley will prevail. If not the Court will face a distinct distasteful alternative; granting Congress authority to veto the Constitution and full control of the amendment process summed up with a single word: dictatorship.

Dan · Oct 22 '15
plu·toc·ra·cy noun \plü-ˈtä-krə-sē\ : 

government by the richest people : 

a country that is ruled by the richest people : 

a group of very rich people who have a lot of power 

~ Merriam-Webster 

The Supreme Court’s latest terrible decision in McCutcheon v. FEC took away the spending limits individuals can influence/bribe politicians with. We officially have a government of the crooks, by the crooks, for the highest bidders. Half of these crooks don’t want to see anyone cast another bothersome vote. You are serfs, that pray you don’t get thrown from the land call home after working for a pittance and degrading yourself in a food service economy. We are ruled by the nobility, warped by the clergy, and you are now in a class of idiots to be oppressed for profit. Step 1: We need to put progress back in progressive. So let’s talk about how to get out of this mess. The first step is admit this system is obsolete. Say it with me, “I declare this government is obsolete.” We can no longer do anything other than raise debt and get in to wars. Most of us don’t drive a car that is more than 12 years old. Why do we depend on a system of government that is older than any other technology we would use today? We need to amend it, … a lot. I know people love the Constitution, but which part? Is it the preamble? That doesn't count. Can we consider abolishing the electoral college? The Constitution is no more than an instruction book for our system of government. Everyone is sick of Congress these days, limit the terms, create more members of Congress to decentralize the power. We need to regain our representation as constituents. So let’s consider some ideas outside the box, but how do we take action on them … ? Well it just so happens the founding fathers knew this would happen. Inside the Constitution in Article V, there is this handy tool, “a convention to propose amendments”. Hallelujah!! 

Step 2: 

Congratulations, you have made it to step 2. Ok, you know you need amendments and you want a convention to propose them. 

How do we trigger it? It takes 34 states to request one. 

How many states have applied for this convention? All of them 

So how many are left? None 

Why hasn’t a convention been called? Please refer to step 1 above. 

Congressman Duncan D. Hunter from California just asked Speaker Boehner how many states have applied for a convention to consider a balanced budget amendment? No one knows for sure, because no one ever counted before. I know this for a fact because I made a similar request of both houses of Congress in April last year and this is the one year anniversary of Congress’ attempt to count to 34. Those requests are still stuck in the Judiciary Committees of both Houses of Congress, it is long story. I also turned in 42 states that appear to have legal standing applications for such a convention and they haven’t told me any of them don’t count anymore. 

These requests were entered in the Congressional record for both houses and remain unanswered. However the more people who know about this obstruction by Congress, the harder it will be for them to ignore the calls from state legislatures. 

Congressional Record Entries: 

[Page: S6204] POM-120. A communication from citizens of the State of Hawaii petitioning for verification and tabulation of State applications for an Article V Convention; to the Committee on the Judiciary. 


Under clause 3 of rule XII, 55. The SPEAKER presented a petition of Dan Marks, Hilo, HI, relative to a letter regarding methods for proposing amendments; which was referred to the committee on the Judiciary. 

Somehow last week the State of Michigan determined they were now the 34th state to apply for a convention. However, Congress isn’t counting. The official count is still zero. So what do you do? Say it with me, “We demand our convention, NOW.” That is great, keep saying that. That is what you need to do, and soon they will hear all of you. It is a power of legislatures as much as it is “the right of the people to alter or to abolish”. We act through our legislatures to apply for a convention. Inform politicians it is your desire to have a convention and you need them to apply on your behalf. This is not your case to make for a legislator to make a judgment, there is a slightly different dynamic here. You are not lobbying for legislation. It might seem over simplistic to think of it from that perspective but you are exercising a right that already exists, not asking them to see it your way. 

"Reviewing the history of the Article V Convention alternative, the record of the Constitutional Convention of 1787 clearly demonstrated the founders’ original intent. During the convention, they agreed that a second mode of amendment was needed to balance the grant of amendatory power to Congress. This method, clearly identified in Article V as co-equal to congressional proposal of amendments, empowered the people, acting through their state legislatures, to summon a convention that would have equal authority to propose an amendment or amendments, which would then be presented to the states for ratification."
The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress
Thomas H. Neale

Step 3:
Now you might think you have this thing figured out but stay engaged and keep talking to people about what proposals are appealing or a bad ideas. The urgency of the issues of the day will be the discussion of the conventions. Stop thinking in terms of ideological agendas and find out where we agree with those on the right. Do we agree our government spends too much? So it is a matter of how we regulate that spending. I have a long list of things that I would love to see the US stop spending so much money on too. Let’s find out where we agree. 

"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it. I can not be ignorant of the fact that many worthy and patriotic citizens are desirous of having the National Constitution amended. While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it. I will venture to add that to me the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept or refuse."

The Inaugural Address of Abraham Lincoln 

Delivered March 4, 1861 

The time to act is now, we are ready to push this through as Americans. Stand up or the opinions of future generations of Americans will mean nothing more than those of cattle.

Dan · Apr 7 '14

Use your phone's keypad: <br>

1 - get on stack <br>

2 - twinkle (agree) <br>

3 - twinkle downward (disagree) <br>

4 - direct response <br>

5 - point of process or technical assistance needed <br>

Dan · Jan 14 '14

Video: Tar Sands Pipeline Threatens US Water Supply; Enbridge Violations

Enbridge / Tar Sands oil spill in SW Michigan poses a threat to residents and has killed off virtually all life along the Kalamazoo River. Chris Wahmhoff of Occupy Kalamazoo and MICATS talks with Dan Marks about how that spill is still impacting their lives. Systemic change is too slow to combat the demand for environmental triage facing people in and around Michigan.


Report about the orange substance:


By jackiews


Michigan Coalition Against Tar Sands “Gives Thanks” to Enbridge at their Office in Marshall, MI

Airing their grievances and demanding they be addressed, MI CATS members held a demonstration at the Enbridge office in Marshall

Marshall, Mich. — In solidarity with all those whose voices and experiences have been denied, folks with the Michigan Coalition Against Tar Sands (MI CATS) are visiting Enbridge, an energy company based in Calgary, Alberta, in their Marshall, MI office this morning to “give thanks” to Enbridge for all the damage and devastation they have caused. MI CATS is maintaining a physical presence at the office while simultaneously generating phone calls to Enbridge, calling them out for the damage they have caused to communities worldwide.

Among many things, MI CATS cited the 2010 Kalamazoo tar sands oil spill, which occurred despite years of warning signs of decay documented by Enbridge. This spill was the largest inland oil spill in history and is still sickening and killing residents that live in communities along the river, a reality that Enbridge continuously denies. The group also cited the this same pipeline and Enbridge’s Line 5 tar sands pipeline, both whose capacity is currently being doubled despite Enbridge’s horrible company track record of over 800 spills in the past decade.

“We are seeing the continuation of ongoing health issues. We are seeing health issues worsening and are still asking for health studies”, says Marshall resident Michelle Barlond-Smith. Many residents impacted by the spill are wondering why Enbridge is allowed to build a new and larger pipeline while the oil from the 2010 spill is still far from cleaned up.

The Michigan Coalition Against Tar Sands stands in steadfast solidarity with all of the human and non-human residents of these affected communities as well as First Nations peoples who have been victims to Enbridge’s predatory business plans since their inception.

During a time when folks are giving thanks for family and food, MI CATS took action today to recognize all of the death and destruction dealt to communities and ecosystems worldwide by Enbridge. Furthermore, we are “giving thanks” to acknowledge the failure of state and federal agencies to hold Enbridge accountable for the irresponsible and catastrophic actions.

The Michigan Coalition Against Tar Sands (MI CATS) seeks to unite the people of Michigan towards a common goal of stopping all transportation and refining of tar sands oil in the state and advocating against the production/transportation of tar sands everywhere.


Liz Starke,
Michigan Coalition Against Tar Sands Spokesperson,, 616-212-7443
Chris Wahmhoff,
Michigan Coalition Against Tar Sands Spokesperson (on site), 269-910-6495

Dan · Nov 30 '13
On April 22nd, 2013 our requestfor official tabulation and verification of Article 5 constitutional convention applications from state legislatures arrived in the Clerk of US House of Representatives office.    The request was prescribed by Tom Wickham the US House Parliamentarian in early April 2013 in a phone conversation with myself, because there was a lack of process to submit a request and there is no official number or way to determine which states have applied for an article V and which have not according to federal offices. 

Parliamentarian Tom Wickham said,"We will, we have a duty to examine them well. We will give you an opinion on whether they reach the level"
... "just like Congressional Research Service, we just next would go down to a, for lack of a better word, a circle of geeks. There's no political presence litmus test being applied at all at that point. What we do is look at it in terms of the precedence."   The response from the Clerks office, legal advisor Kirk Boyle admitted that Congress never counted any of the applications,
"The Clerk has not been assigned the responsibility to tabulate State applications for an Article V convention by statute or the rules or precedents of the House. Accordingly, the Office of the Clerk is unable to fulfill your request. However, I would be pleased to forward your correspondence to your Member of  Congress or to the Committee on the Judiciary for further consideration if that would be of assistance to you. Under the rules of the House, the Committee on the Judiciary has jurisdiction over constitutional amendments and has a subcommittee dedicated to the Constitution."
  I instructed the Clerk of House to forward the request to the House Judiciary Committee as they suggested and added: "Since the letter you sent to me also reveals that Congress never counted any of the applications that date back to 1789 and as recent as 2013, it is possible that the answer may reveal an ongoing obstruction of a peremptory constitutional process. Because of this I would ask you to officially notify the President and Vice President of the United States, as chief enforcement officers of the Constitution. I believe their awareness of this situation is required."   The Clerk of House, Karen Haas forwarded the requestto the Speaker of the House, John Boehner's office where the Speaker of the House presented it to the Judiciary Committee for review.  It was entered in the Congressional Record here on Page 3.    We can confirm that the White House was not informed of this as I asked.    The Senate side went faster. I sent a similar letter to Elizabeth McDonough the Senate Parliamentarian in July of 2013.  She entered the request in the Congressional Record on August 1st, 2013 and sent the request on to the Judiciary Committee where is it waiting to be scheduled on the calendar.  That entry reads [Page: S6204] POM-120. A communication from citizens of the State of Hawaii petitioning for verification and tabulation of State applications for an Article V Convention; to the Committee on the Judiciary.
At this point we need to make sure the American people and state authorities are aware of this action.  That awareness has the power to keep them honest and make sure this is dealt with transparency and in an appropriate manner. 

The popularity of Mark Levin's Book Liberty Amendments gives the impression that conservative think tanks may somehow hold a convention restricted to their agenda and keep the people out of the process and refuse to allow an election of delegates.  Judiciary Chairman Goodlatte may like that point of view.  That is
not the case however. 
In one of Thomas Jefferson's letters in 1816 he wrote: This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves.”

I need to solicit the assistance of the fourth estate to ensure that our government does not avoid it’s peremptory duty and change the rules while the game is being played.  The only way to make sure that our democratic process stays unadulterated is to focus the spotlight on their actions before they are made.  I need your help to get the word out.  

Article V Information

[Page: S6204]
POM-120. A communication from citizens of the State of Hawaii petitioning for verification and tabulation of State applications for an Article V Convention; to the Committee on the Judiciary.



Under clause 3 of rule XII,
55. The SPEAKER presented a petition of Dan Marks, Hilo, HI, relative to a letter regarding methods for proposing amendments; which was referred to the committee on the Judiciary.

The Constitution also authorizes a national convention, when two-thirds of the states petition Congress for such a convention, to propose amendments, which would also have to be ratified by three-quarters of the states.
----------------- The Paper Trail
Letters to/from Congress in chronological order: **** ---------------------

What is an Article V Convention?
The only direct way citizens can propose amendments to the Constitution of the United States.

Why should America do this?
Such a convention, an institution unto itself, is our brightest hope towards bringing about these changes.

Article V of the U.S. Constitution reads
"(2) the term “election” means—
(E) the election of delegates to a constitutional convention for proposing amendments to the Constitution of the United States or of any State; and"

With well over a century of experience in proposing an Article V Convention, the states have arrived at certain precedents for the consideration of these applications."
The Article V Convention for Proposing 
Constitutional Amendments: Historical 
Perspectives for Congress 
Thomas H. Neale 
Specialist in American National Government 
Congressional Research Service Report R42592
October 22, 2012
  Michigan Can Lead the Way: Michigan Constitutional Convention

Documentary on the Michigan Constitutional Convention of 1961-1962.



United States v. Sprague, 282 U.S. page 716 (1931), the Supreme Court stated: 

"The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them."

My recent session with David Cobb of Move to Amend at the Democracy Convention in Madison 8/2013
Part 1 - - David Cobb - Article V Constitutional Convention: A Blessing or a Curse?
Part 2 - - Dan Marks - Article V Constitutional Convention: A Blessing or a Curse?

The entire collection of recorded applications
Dan · Nov 6 '13
By: Daniel Marks Tuesday April 30, 2013 3:35 pm

Since the very beginning of our nation’s history, our states have applied for a convention to propose amendments under Article V of the Constitution. It requires two-thirds of the states to apply for Congress to call it. Congress never has, yet the states keep applying. In fact, states have applied for a convention more than 700 times. The power Congress holds over the states in this effort is the ability to ignore the applications. For the first time in US history, We are making Congress count the applications.  The emperor wears no clothes.

On April 22nd, a certified letter arrived at the Clerk of US House of Representatives office that read:

Karen Lehman Haas
Clerk of the U.S. House of Representatives
Office of the Clerk
U.S. Capitol, Room H154,
Washington , DC 20515-6601


Subject: Requesting verification and tabulation of State applications for an Article V convention to propose amendments.

Greetings Ms. Haas,

I spoke with Kirk Boyle in your office and Tom Wickham, House Parliamentarian, and have been instructed to deliver this information to the Clerk of the House of Representatives. I am providing you with the attached documentation of 42 legal and standing State applications for an Article V convention for determination of their validity. The collection of all known applications on record may be found here:

We, involved with, acknowledge the fact that the States have satisfied the required two-thirds numerical threshold to call for an Article V Convention under Article V of the US Constitution and Congress should call an Article V Convention to order. We make formal request for the Clerk of House of Representatives to verify and inform Congress of this matter.

The Congressional Research Service arrived at a similar conclusion. “With well over a century of experience in proposing an Article V Convention, the states have arrived at certain precedents for the consideration of these applications.” from the Congressional Research Service Report by Thomas H. Neale, The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress, October 22, 2012.

Those advocating for an Article V Convention from various groups often find ourselves in debate about what the current count is today. As the Congressional Research Service pointed out, there has never been an official tabulation to indicate which state applications would be valid toward the two-thirds threshold, and which would not. We truly desire an official verification and tabulation of these applications and any others we may have overlooked so there is an official number we may all reference.

Thank you for your time and diligence in this matter.

Dan Marks

Bill Walker Co-Founder of wrote about this action in his piece this week:

“Under House rules (Rule II, 2(b) and Rule VII ) the clerk of the House is responsible for providing any reports required by law to be made to Congress. This of course includes a report listing the number of applying states requesting a convention call. The “law” in question is Article V of the Constitution. The procedure for recording applications was established on May 5, 1789 and has remained unchanged. Therefore, according to House rules, the record is public domain as it has existed over 30 years. Under House rules the clerk is considered the “custodian” of all records of the House of Representatives including state applications for a convention call.”

By my count it appears there are 42 states with standing legal applications for an Article V convention. Since the threshold today is 34 states, we have plenty of wiggle room. The point of the action is not to be “correct” about how many states have applied.  The action we are taking should produce an official number. If we are at 32 states instead of 42, that is fine with me. We will know what counts as an application to the federal government, and whatever states may remain in the “not applied” column can be added quickly. This is a fundamental step in the effort. We need to know where we are starting from if we are going to be successful.

We hope to open the doors of government to the people. We will have a chance to control our own destinies. Knowing this event could be imminent gives us time to begin to build consensus around proposals and drive the agenda before the convention assembles. Those who fear the Koch Industries showing up, relax. Of course someone from Koch will be there. But, they won’t get far. There is no bad idea that is clever enough to make it through convention or Congress and get ratified by 38 states. Keep in mind that the Defense of Marriage Act and the ERA were not able to clear that hurdle. It is really hard to ratify amendments. The convention is merely a place to originate these ideas for states to consider. Big money can only obstruct good things from happening.

Please support this request for an official tally of applications by the Clerk of the House of Representatives. You may write a letter in support to the address above or contact the Clerk’s office by phone at (202) 225-7000. We have a real chance to choose what kind of nation we will be for the next 200 years.  It is time to roll up our sleeves and get serious or We the People will blow it.

Dan · May 25 '13 · Rate: 5 · Comments: 3

By: Daniel Marks Saturday May 18, 2013 4:53 pm 

We need to come to grips with the futility of our current efforts to put our government on the right course.  We are becoming serfs of a corporate oligarchy.  Our nation needs repair.  We need to remember what being American is all about.

The Problem: Our government is broken.

This point is obvious, we all understand that our government is unable to pay its own bills or pass meaningful legislation that can address the many problems that vex our nation.

Alexander Hamilton wrote, “As riches increase and accumulate in few hands, as luxury prevails in society, virtue will be in a greater degree considered as only a graceful appendage of wealth, and the tendency of things will be to depart from the republican standard. This is the real disposition of human nature; it is what neither the honorable member nor myself can correct. It is a common misfortunate that awaits our State constitution, as well as all others.”

We have all seen the political gamesmanship that leads to lopsided wins for parties but even when each have great majorities, there is no progress. Now our government is evenly split between the two parties and still more of the same gridlock and inaction in a prolonged national economic crisis. They managed to make it worse by a self imposed sequestration that is quietly going to stick around.

The Solution: We the People are the answer.

Do not look to the President, Congress, or the Supreme Court to guide us out of the darkness. These institutions and governmental functions, though thoughtfully designed by our founders, have failed us. The reason? The ultimate check and balance to governmental power put into place by our founders has not been exercised… That is up to each of us.

As George Washington told us in his Farewell Address, “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, ’till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.

When we talk about how to reverse Citizens United and regain our representation, the answers are not so obvious. Limiting political speech is very complex. Should we ban all political contributions from citizens and voters too? Some say we should while others say we should only ban corporations from contributing, but what about the unions?

There is no single person who is so brilliant that they know the answers to all of our problems. The solutions are not obvious and only We the People have the ability to determine what is right. We need to build consensus around these changes or they may backfire. This will not be easy, yet we cannot avoid the heavy lifting and we cannot shy away from uncertainty when our present course is so unsustainable and destructive.

The Method: An Article V convention to propose amendments

For those that have been educated about this method to circumvent Congress in a time such as this, most would consider this option unattainable. Sure, we have the convention clause in our Constitution but since we have never used it before, it will never happen, right? Wrong.

This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves.”
~ Thomas Jefferson, Letter To Samuel Kercheval – Monticello, July 12, 1816

We Are Already Making Progress.  We will soon find out how far from an Article V convention we really are. Through the years, there have been hundreds of State applications for an Article V convention. Now, for the first time in US history, those of us in the group, have requested an official tabulationof state applications for an Article V convention. If the number of states is more than 34, the call from Congress to assemble a convention is mandatory under Article V of the Constitution. They have no choice; they cannot scuttle it to a committee or have an endless debate about it.

The Article V Convention process was designed and placed in our US Constitution this way because our forefathers knew that Congress could present a problem when states apply for the convention, particularly a congress gone out of control and otherwise unaccountable to the people. The Article V convention process is how our forefathers planned to ensure that the result of their work was better than what they started with, and that we the people would continue to have a voice in shaping and designing our government.

The Conclusion: An era of healing must begin.

Just because we assemble in a convention does not mean we are guaranteed success. We need to put aside our differences and come together as a nation. We cannot be successful if we sit down as one side of the political spectrum. There will be no progress if the Convention is Democrat vs. Republican or Tea Party vs Occupy, or Gay Rights Activists vs. religious fundamentalists. We need to understand that even those who are in the same groups are different. When we peel back layers of our differences, what remains is America.

We are brothers, friends, and patriots. When was the last time you heard any politician refer to America as a melting pot? We need to find that spirit which has made our nation so great and it begins with accepting each other as Americans. We need to begin to heal from decades of division and the pain of tragedies we have all experienced. We need to make this world livable for our grandchildren and their kids. America lost dignity in recent years and we are not the same nation we once were, but we are not helpless.

Dan · May 23 '13 · Tags: article v
At the suggestion of United States House of Representatives Parliamentarian Tom Wickman, Dan Marks, of ArticleV.Org has sent a letter of inquiry to Karen Haas, Clerk for the United States House of Representatives. Read more...

Indisputable State Applications for Convention
 May 16, 2012 at 4:52pmListed in the order they appeared on's Facebook wall.

#1 Arizona 1996

Page 1

Page 2


#2 Arkansas 1952.


#3 California 1931


#4 Colorado 1910


#5 Illinois 1910


#6 Indiana 1907


#7 Iowa 1908


#8 Kansas 1907


#9 Louisiana 1908


#10 Connecticut 1949


#11 Kentucky 1861


#12 Massachusetts 1931


#13 Maine 1911


#14 Georgia 1832


#15 Michigan 1941


#16 Missouri 1905


 #17 Montana 1911


#18 Alabama 1833 


 #19 Alaska 1982


#20 Florida 2010


#21 Nebraska 1949


 #22 North Carolina 1907


#23 Nevada 1907


#24 North Dakota 2012


#25 Delaware 1978


#26 New Jersey 1907


 #27 New Hampshire 1969


#28 New York 1789


#29 Oklahoma 1910


#30 Oregon 1909


#31 Pennsylvania 1943


#32 South Carolina 1833


#33 South Dakota 1989


#34 Wisconsin 1929


#35 Tennessee 1978


#36 Texas 1899


#37 Virginia 1789


#38 Washington 1911


 #39 West Virginia 1971


#40 Wyoming 1910


#41 Utah 1987

#42 Rhode Island 1977

Positions of

There is a great deal of dispute regarding laws that guide the process of anArticle V convention. We hope to address all issues surrounding this topic with clarity and pass on the knowledge to help others carry this message forth that seek solutions to our chronic problems.

No More State Applications for Convention are Required
The States have satisfied the required two-thirds numerical threshold to call for an Article V Convention under Article V of the US Constitution and Congress should call an Article V Convention to order.

We offer the attached data to support this.
(please bear witness to the record of over 700 applications to Congress by 49 states)

Congress Must Call a Convention Without Mental Reservations
The Constitution mandates Congress call a convention when two thirds of the state legislatures apply for a convention call. Today that means 34 states must submit 34 applications. As demonstrated by Wisconsin in 1929 when 35 states applied by that date. According to the Constitution, calling for a Convention is a legal question and a mandatory duty of Congress. Congress is not allowed to have mental reservations about following these instructions. Presently, Congress sees this issue as a political question giving them a choice to acknowledge or ignore the applications of the states. While a district court did rule in 2000 the call was a political question for Congress to decide, the federal government has also admitted in court such decision violates the oath of office clause of the Constitution and thus constitutes a federal crime.

Congress or States do not have the power to set the limitations of the convention
The Supreme Court has ruled this in U.S. v Sprague that there are no rules of constructioninterpolation or addition permitted in Article V. As such as there is no text giving Congress or the states such power, it does not exist. This also explains why the states cannot control Congress and dictate to them what amendments they will propose, when they will propose them and so forth. Only the Constitution through Article V has the power to limit the Convention to proposing amendments and not allowing a complete rewrite of Constitution. The reason a convention cannot do this is because if it could so could Congress but both are forbidden by the word “amendment” rather than “alteration” which is what was contained in the old Articles of Confederation.Alteration allows for the alteration of the original document; amendment only permits additions or deletions of words separate of the original document with that document remaining intact. Also, the convention may not infringe on the equal suffrage of States in the U.S. Senate. Since Article V also says “convention to propose amendments”, it is easy to see how the convention will examine more than one proposal.Applications do not expire until a convention is called.
They may not be rescinded by Congress or States; the Congressional Record is a historical document. The reason rescissions are not constitutional beyond the fact Article V does not describe them is the Tenth Amendment which clearly states powers assigned to the federal government are the federal government’s. Powers assigned to the states are the states. An application, once it has left the state and been submitted to Congress becomes a federal record kept in the Congressional Record as required by the Constitution. Thus, under the terms of the Tenth Amendment the states cannot effect a public federal record. This also explains why the states cannot control Congress or a convention.Article V Requires Applications, Not Identical Amendments
The amendment proposal attached in the application is a suggestion to the convention of an amendment the state favors. The application thus serves two purposes. First, the fact the state submits it regardless of content serves to “count” the state toward the two thirds necessary to cause a convention to be called. Once Congress has finished and called the application then becomes a petition for the convention to address regarding whatever amendment subject the state favors. Like all other petitions submitted by the people and so on, the convention then considers the petition and acts on it meaning it may or may not propose the amendment submitted. The Founders rejected the states directly proposing amendments and instead only allowed the states to apply for a convention which in turn proposes amendments in the 1787 Convention. Therefore, suggestion of amendments in applications have no legal bearing on applications being used by Congress to determine if two thirds of the states have applied. Applications may be of different subject matter or be an open call for a convention. It makes no difference–all that matters is two thirds of the states have applied for a convention call.

The Declaration of Independence States it is the Right of the People to Alter or to Abolish Their Form of Government
This fundamental right is incorporated into the Constitution in Article V. This provision allows two methods of proposing amendments to the Constitution; Congress or a convention and provides two means whereby any proposal must be ratified before becoming part of the Constitution. The reason for this is to allow for great public discourse and thought before any change to our national law is made.

The Federalist Papers #85
Alexander Hamilton’s essay in The Federalist Papers #85 was the closing argument to states to agree to the Constitution. Hamilton was a strong supporter of Federal powers, yet also strongly supported the method of convention to reign in power of the Federal Government. Hamilton pointed out one of the major strengths of the convention was the states could propose amendments through the use of the convention independent of Congress. Thus the states retained power in the new government. He stated the call was “peremptory” a position the Supreme Court has repeatedly stated. Peremptory means, as Hamilton stated, that the national rulers shall have “no option” as to calling a convention. Thus, such things as contemporaneous of applications, subject matter and so forth have no bearing on whether Congress must call–only the number of submitting states matters.“By the fifth article of the plan, the Congres will be obliged ”on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.” 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. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.” The Federalist Papers #85

The Tale of the 17th Amendment’s passage:
Many people have heard of Woodrow Wilson’s campaign to pass the 17th Amendment allowing for direct election of Senators. Prior to passage, U.S. Senators were elected by State legislators. In 1911, 33 states applied to Congress for an Article V convention proposing this amendment. Instead, in 1913, Congress passed the 17th Amendment sending it to the states for ratification. Because Congress proposed the 17th Amendment and Congress did not call, people were led to believe the applications were null and void. This is not true. The fact Congress proposed an amendment does not relieve it of its responsibility to call a convention even if that convention would be considering a different version of the same amendment. Proposal of an amendment and calling a convention are two separate duties of Congress. Article V does not say Congress shall call a convention unless it proposes an amendment first. It says Congress shall call. Thus, since a convention was not called, all applications are still active. Also, the applications included direct election of the President. 31 of the applications also called for elimination of the electoral college. Thus, there is nothing to say an amendment coming out of the convention would have been the same that Congress proposed. Indeed, all evidence points to the contrary. (I’d put a link here to at least one application showing such proposal of president and electoral college).

Delegates are nominated and elected to an Article V convention according to each state’s own election rules.
The Supreme Court affirmed delegates must be elected in a 1920 case, Hawke v Smith (need link). These rules are the same rules that govern election of members of Congress. Under the terms of the 14th amendment citizens elected to Congress who can propose amendments and citizens elected as delegates to a convention form a legal class. The Constitution mandates they shall receive equal protection under the law meaning whatever laws apply to Congress equally apply to the convention. 

We Do Not Know Which Amendments Will Be Considered
While the list of proposed amendments sought by the states in their applications can be examined by the public (need link to applications) this list can in no way be considered to limit a convention before it begins. Just as Congress can examine other amendment issues after an election, so can the convention. Just like Congress a member of a convention (a delegate) must propose the amendment to the convention. The applications of the states will be considered having already been submitted. The reason for this is unless the application is dealt with by the convention and disposed of in some manner it could be argued it is still valid and therefore if enough are ignored by the convention and since the number of applications well exceeds the minimum number required to call a convention and once reached require no additional applications, a second, third or fourth convention is mandated. To avoid this the convention needs to deal with all applications thus rendering the number of submitted applications for future convention back to zero. Thus while the state applications have a leg up so to speak in that they will be considered the practical effect of this is null as delegates are not limited by the states to only consider those applications. These applications will become “old business” and any other proposals “new business.” The only stipulation will be, of course, that any issue or subject dealt with in “old business” may not be readdressed in “new” business. This is standard practice in almost all parliamentary proceedings. The fact is that nearly all political issues of today have already been submitted by the states, in some cases, as much as a century ago. Thus, there will be little “new” business for the convention to consider because the “old” business will address nearly all topics.

Dan · Mar 26 '13
I am posting for those interested, a list of articles and other materials I have written over the years regarding an Article V Convention. The material deals with providing facts and information about the convention and may be useful to those seeking factual, documented information about the convention. For those who are dealing with convention opponents, the material may be useful. As I write more material I will add it to the list.

1. Overlength Brief;
2. Rebuttal to Amending the Constitution by Convention—A Complete View of the Founders’ Plan;
3. Rebuttal to Amending the Constitution by Convention—A Complete View of the Founders’ Plan (Endnote version);
4. A Question of Accuracy: Shall The John Birch Society Decide the Constitution?;
5. A Question of Accuracy: Shall The John Birch Society Decide the Constitution? Part II;
6. A Question of Accuracy; What Else Can You Tell Me About the Burger Letter?;
7. Article V and the Tenth Amendment Movement;
8. The MIAC Report and An Article V Convention;
9. Bob Schulz and An Article V Convention;
10. Walter Williams, Tea Parties and Article V;
11. A Federalism Amendment; Some Corrections To The Record;
12. Proposing the Constitution and Article V; What if They Had No Choice;
13. The Heart of the Attacker;
14. The Rasmussen Poll;
15. An Article V Convention Call; Tennis Anyone?
16. The Matter is Pretty Clear Now;
17. An Article V Application; The States’ Tenth Amendment Rights in Action;
18. An Article V Convention; Exposing the Really Bad Ideas;
19. The Master Plan;
20. An Article V Convention; What Else I wanted to tell Mike Church;
21. Phyllis Schlafly and Madison; Yet Another Lie By Phyllis Schlafly;
22. The Article V Convention; What Should the JBS Be Saying;
23. The Why of An Article V Convention;
24. The Misconstrued Article V Application; The Misinformed Article V Rescission;
25. Nolan Chart Version of Symposium Speech;
26. Cooley Law School Review Article—Symposium Speech;
27. The Law and The Article V Convention;
28. Is Rand Paul Sincere;
29. The Ten Point Mythology of A Runaway Convention;
30. Answers to Mrs. Schlafly’s Twenty Questions About a Constitutional Convention;
31. Let’s Leave the Constitution As Is;
32. An Announcement;
33. The Conconcon; Wrong Name, Right Time;
34. The Truth;
35. Opening Remarks;
36. The Article V Convention: Discussing the Reality versus the Fantasy;
37. The Article V Convention (Nolan Chart Version);
38. The ALEC Report;
39. My Response to Robert Thorpe;
40. Holder Begins Criminal Investigation Regarding Article V Convention;
41. A Case Study in Same Subject Convention;
42. A Limited Article V Convention;
43. FBI Kills Article V Convention;
44. The Strange Case of Senator Mike Gravel;
45. Why Romney Lost;
Bill Walker · Mar 23 '13 · Rate: 5 · Comments: 1
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