Publius-Huldah's Blog

Understanding the Constitution

The “Compact” Gimmick to circumvent the Powers granted to Congress by Article V

By Publius Huldah

The supremacy clause at Article VI, clause 2, US Constitution, says:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Two bills produced by the Convention of States Project (COSP), SJR 31 & HJR 49, which purport to provide for the selection and control of “commissioners” to an “interstate convention” for “proposing amendments” to our federal Constitution, were filed in the Virginia General Assembly this past session.  The General Assembly postponed consideration of the bills until 2019.

The bills assert that such an “interstate convention” is authorized by Article I, §10, clause 3; the 10th Amendment; and Article V of our Constitution.

As shown below, the bills are unconstitutional because they seek to circumvent Article V; and are not encompassed within Article I, §10, clause 3, or the 10th Amendment. Under the supremacy clause, they would be struck down.

1. What Article V says about amending our Constitution

Article V says:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing amendments…”

Our existing 27 Amendments were obtained under the first method: Congress proposed them and sent them to the States for ratification or rejection.

We’ve never had a convention under Article V – they are dangerous! If Congress calls an Article V convention, our existing Constitution could be replaced with a new Constitution which sets up a completely new structure of government. 1

Nevertheless, the People granted to Congress at Article V the power to “call” a convention; and to the Delegates to the convention, the power to “propose amendments”. 2

Yet COSP, in brazen disregard of the plain meaning of Article V, has long insisted that the States “call” the convention; the States propose the amendments for the convention to rubberstamp; and the States will have total control over the Delegates to the convention.

SJR 31 & HJR 49 are an implicit admission that we who oppose an Article V convention have proved our point: Congress really does “call” the Convention; and pursuant to its grant of power to “call” the convention, Congress really is granted by Article I, §8, last clause, the power to make all laws “necessary and proper” to carry out the powers granted to Congress by Article V; and the States actually have no power over an Article V convention – except to ask Congress to “call” one. 3

The Congressional Research Service Report dated April 11, 2014 likewise reflects Congress’ clear awareness that it alone has the power to organize and set up an Article V convention. The Report says:

“First, Article V delegates important and exclusive authority over the amendment process to Congress…” [page 4]

“Second . . . Congress has traditionally laid claim to broad responsibilities in connection with a convention, including . . . (4) determining the number and selection process for its delegates; 4 (5) setting internal convention procedures, including formulae for allocation of votes among the states; . . .” [page 4] [italics added]

And contrary to COSP’s previous assurances that the States would have total control over an Article V convention, the CRS Report says on page 27:

“In the final analysis, the question what sort of convention?” is not likely to be resolved unless or until the 34-state threshold has been crossed and a convention assembles.”

In other words, we’ll have to get a convention before we know what the Delegates are going to do!

2. The new Gimmick to circumvent Congress’ powers under Article V

SJR 31 & HJR 49 make the bizarre claim that Article I, §10, clause 3, which says:

“No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State…”,

is really talking about an “interstate convention” for the States to meet and “propose amendments” to our Constitution!

First of all, our federal Constitution doesn’t address “interstate conventions”! 5 State and local governments and private organizations may hold nationwide conventions (gatherings) on an endless list of matters: trade shows, book fairs, sports events, high school marching band contests, agricultural fairs, meetings of County Sheriffs, whatever they like! And they don’t need permission from Congress.

Secondly, a “Compact with another State within the meaning of Article I, §10, clause 3, is separate, distinct, and totally unrelated to the Article V convention called by Congress for the purpose of addressing our federal Constitution. “Compact”, as used in Article I, §10, clause 3, means binding agreements or contracts between States which deal with state matters. Traditionally, “compacts” have been used to resolve such matters as boundary disputes between States; and may be used to address various other issues between States. 6

Article V governs amendments to our Constitution – not Article I, §10, clause 3!  Virginia may not lawfully set up any gimmick to circumvent the powers granted by Article V to Congress. And Congress may not lawfully approve a “compact” which violates our Constitution!

Thirdly, SJR 31 & HJR 49 claim the 10th Amendment gives States the power to hold an “interstate convention” to propose amendments to the Constitution. Rubbish! The 10th Amendment addresses powers “reserved to the States…or to the people.” It is inapplicable here because no powers respecting an Article V convention were reserved to the States: The People granted to Congress the power to “call” an Article V convention; and to the Delegates, the power to “propose amendments”. The only power the States have is to ask Congress to call the convention.

Once the requisite number of States has applied to Congress, it’s out of the States’ hands. Pursuant to Article I, § 8, last clause; 7 Congress has the power to make all laws necessary and proper to carry out its power to “call” the convention. And then, our Fate is in the hands of the Delegates; and they can do whatever they want – as they did in 1787.

3. The new Gimmick attempts to circumvent the Plenipotentiary Powers of the Delegates to an Article V Convention.

Article V shows on its face that the convention is the deliberative body. The Delegates hold the Power to “propose amendments”; or, to do what our Framers did at the federal “amendments” convention of 1787 (invoke the 2nd paragraph of the Declaration of Independence) and write a new Constitution which creates a new government.

So, while the States are free to propose amendments to their Congressional Delegations [and this is what James Madison advised]; 8 the States have no authority to dictate the amendments to be proposed at the convention called by Congress.

And as shown in “Why states can’t prevent a runaway convention” and “Delegates to an Article V Convention can’t be controlled by state laws! attempts to control Delegates with “unfaithful delegate” laws are laughably ineffective.

Apparently, COSP now concedes that “unfaithful delegate” bills won’t work, since with SJR 31 & HJR 49, COSP attempts to circumvent the plenipotentiary powers held by Delegates to an Article V convention, by fabricating a new kind of convention (meeting) out of Article I, § 10, clause 3!

4. The solution is to enforce the Constitution we already have

Americans don‘t know what our Constitution says and don’t care what it says. They want what they want; and elect politicians like themselves. The politicians made a mess. To fix the mess, Americans must read our Declaration of Independence and Constitution, and enforce them with their votes and by repudiating unconstitutional federal programs. State and local governments must enforce our Constitution by renouncing federal funds to implement unconstitutional programs and by nullification. See also James Madison’s specific suggestions on how States & Citizens can resist federal usurpations.

End notes:

1 This is why Brilliant Men (Madison, Hamilton, four US Supreme Court Justices, and other eminent jurists and scholars) warned against another convention. And this flyer sets forth the Facts of the federal “amendments convention” of 1787 at which our existing Constitution was drafted to replace our first Constitution (the Articles of Confederation).

2 The issue in U.S. v. Sprague (1931) was whether the 18th Amendment (Prohibition) should have been ratified by conventions in each State instead of by State Legislatures. The Supreme Court held that Article V “is a grant of authority by the people to Congress” and that the people “deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments.” Accordingly, Congress had authority to select ratification of the proposed 18th Amendment by State Legislatures instead of by conventions in each State.

3 THIS handy chart lists who has the power to do what respecting an Article V convention.

4 Congress is under no obligation to permit States to participate in the Convention. Congress has the power to appoint its own members, federal judges, or whomever else they want as Delegates!

5 “Convention” has several meanings. It can be a meeting or gathering, such as a national convention of County Court Clerks or architects; or it can refer to a treaty with foreign countries, such as the Hague and Geneva Conventions on the laws of war. The author of SJR 31 & HJR 49 may have fallen victim to the Fallacy of Ambiguity since he slips and slides between the two meanings. “Compact” in Art. I, §10, cl. 3, means “agreement” or “contract” – not meetings!

6 E.g., States could properly enter into “Compacts”, within the meaning of Art. I, §10, cl. 3, wherein they agree to prohibit waste being discharged into a River shared by them; or respecting the construction of a hydroelectric dam on the River. Even though the federal government has no delegated authority to deal directly with such issues; the requirement of Consent by Congress to such Compacts is proper because States situated above or below the proposed dam could be affected by the dam.

Neither the Federalist Papers nor Madison’s Journal of the Federal Convention of 1787 set forth what our Framers meant by “compacts” at Art. I, §10, clause 3. Here are two secondary sources: The Evolving Use and the Changing Role of Interstate Compacts: A practitioner’s guide, by Caroline N. Broun & Michael L. Buenger (see pages 1-9 for the historical basis of “interstate compacts”). See also Justice Story’s “Commentaries on the Constitution of the United States” (1833), Book 3, Ch. 35, §§ 1395-1403.

7 Former law professor and pro-convention operative Rob Natelson’s statements to the contrary are untrue. See “Rob Natelson perverts the Necessary and Proper Clause and thinks in circles”.

8 E.g., Madison’s letter of Nov. 2, 1788 to Turberville (pages 297-301) at the end of Madison’s point 2 [and then read Madison’s point 3!]

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June 13, 2018 - Posted by | Article V Convention, Convention of States project, Faithful Delegate Laws, interstate conventions | , , , , , , ,

23 Comments »

  1. Reblogged this on Boudica2015.

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    Comment by boudicabpi2015 | June 19, 2018 | Reply

  2. Reblogged this on PUMABydesign001's Blog.

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    Comment by bydesign001 | June 19, 2018 | Reply

  3. I notice your focus toward “on the Application of the Legislatures of two thirds of the several States, shall call a Convention” —
    This seems to be your bone of contention with whether the “states” or “congress” calls the convention. Clearly, the states *trigger* the “call” *from* Congress, as it does say “shall call,” not “may call.” Not sure if this helps or hinders your case, but it’s definitely an existing linkage of cause and effect.

    Like

    Comment by The Trump Advisor | June 16, 2018 | Reply

    • The Truth is what’s important. A FACT must be embraced whether it helps or hinders an argument. If the Facts show that a person’s theory or argument is wrong, that person will change his theory or argument to accommodate the Facts – if he is honest.

      The States apply to Congress for Congress to “call” a convention.

      Pursuant to the power delegated to Congress at Article V to “call” the convention, and Article I, Section 8, last clause, Congress has the power to make the laws necessary and proper to carry out its power to “call” the convention.

      This Chart accurately sets forth who has the power to do what: https://publiushuldah.files.wordpress.com/2016/02/myth-v-fact-chart-caavc1.pdf

      Like

      Comment by Publius Huldah | June 17, 2018 | Reply

      • Ditto 1000x…its the truth that matters, above all, and we might as well take a position for or against that.

        Reminds me of something the Great Detective said:

        “It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts. “–Sherlock Holmes. A Study in Scarlet.

        Honesty required…the honesty that seeks the Truth of a matter, no matter what it is. If we require such honesty from detectives, how much more so is it required of us who seek to interpret and implement the Constitution, and hold others to it?

        Like

        Comment by M. Craig Elachie | June 17, 2018 | Reply

        • Yes! I started reading Sherlock Holmes in the 7th grade and can truly say Sherlock had a profound influence on me and helped shape my character. The stories also helped me in my litigation.

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          Comment by Publius Huldah | June 17, 2018 | Reply

          • Perry Mason got the glory, but its Paul Burke that whispered in his ear.

            All kidding aside, there is much greater depth in those novels that many realize.

            Holmes was created at a time of most profound development in the investigative field. There is some reason to believe that Conan Doyle influenced Edmund Locard, the Father of Forensic Science.

            “Circumstantial evidence is occasionally very convincing, as when you find a trout in the milk, to quote Thoreau’s example.” Sherlock Holmes, In The Noble Bachelor

            Like

            Comment by M. Craig Elachie | June 17, 2018

          • Paul Drake?

            Like

            Comment by Publius Huldah | June 17, 2018

          • Yes…Paul Drake.

            (thought you knew who he was. )

            I was tempted to say “Paul Burke” was an alias “Paul Drake” used occasionally…but actually, I just wrote the wrong name.
            Oh well.

            Like

            Comment by M. Craig Elachie | June 17, 2018

  4. There is a whole mountain of evidence to support the conclusion of the COSP being a fraudulent organization. I keep trying to taunt them into bringing a lawsuit against me for defamation so it can be proven in a court of law, but alas it’s to no avail. Maybe someday…

    Something I have been watching is the COSP website and how their rhetoric keeps changing. Such as how we were first told by them how the “COS” is limited to the specific amendments applied for by the States. Which was changed to say:

    “We want to call a convention for a particular subject rather than a particular amendment. Instead of calling a convention for a balanced budget amendment (though we are entirely supportive of such an amendment), we want to call a convention for the following purpose: Limiting the power and jurisdiction of the federal government.”

    Considering limiting the power and jurisdiction of the government is what constitutions do, that is in essence calling for an unlimited convention which can rewrite our entire Constitution. It also makes their erroneous arguments of limited conventions a moot subject since it’s been shown they have no intention of limiting one. Yet they felt the need to change their position again, this time calling for particular amendments along with unlimited amendments pertaining to the subject of power and jurisdiction.

    “Our convention would only allow the states to discuss amendments that, “limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.”

    What a bunch of horse-puckey.

    Like

    Comment by Blue Tail Gadfly | June 14, 2018 | Reply

    • “Horse-puckey” is more generous than COSP deserves!

      “Aldrich Ames” comes to my mind. He too did it for the money.

      Like

      Comment by Publius Huldah | June 14, 2018 | Reply

      • Greed is definitely one factor involved with some in this movement. But at the heart of it is autonomy, whether it be from God, human government, or both. All tyrants are vested with the belief that laws are made for everyone else but them, so they generally don’t care what the form of government is as long as they can act with impunity. Which is the rub our constitutional republic has on them; they are legally bound from mischief and can be held responsible. Enter Mark Levin with his “liberty” amendments, as well as the ones which didn’t make it into his book, such as a War Powers Amendment which would needlessly and dangerously expand the presidency’s war powers closer to that of a king. Levin has also recently argued that a president can pardon himself, something a king can do also.

        So it appears to me like Levin’s politics are closer aligned to a monarchy rather than a republic. But even if Levin can still rightfully be considered a republican of some sorts, I think it would behoove us all to consider Daniel Webster’s wise words regarding constitutions and republics.

        “Nor are great and striking alterations alone to be shunned. A succession of small changes, a perpetual tampering with minute parts, steal away the breath though they leave the body; for it is true that a government may lose all its real character, its genius and its temper, without losing its appearance. You may have a despotism under the name of a republic. You may look on a government and see it possess all the external essential modes of freedom, and yet see nothing of the essence, the vitality, of freedom in it: just as you may behold Washington or Franklin in wax-work; the form is perfect, but the spirit, the life, is not there.”

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        Comment by Blue Tail Gadfly | June 15, 2018 | Reply

  5. Reblogged this on Starvin Larry.

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    Comment by gamegetterII | June 14, 2018 | Reply

  6. Excellent work. We wouldn’t have this problem if people could read and interpret the Constitution competently. But, no, our schools would rather focus on socialism. Thus creating a society of imbeciles. Such a shame… Thank you. David

    Like

    Comment by The Smart Way for Cobb | June 14, 2018 | Reply

  7. Thank You P-HB for connecting the dots.

    Bob Webster, Pleasant Grove, UT. 84062, LD57

    Like

    Comment by websterbob801 | June 13, 2018 | Reply

  8. Hear, Hear.

    Sent from my iPhone

    >

    Like

    Comment by Noah Tickle | June 13, 2018 | Reply

  9. I am behind you 100 % . You make everything so clear and succinct. Let’s follow the letter of the Constitution as it was written. Read it, learn it, and listen to Publius !

    Like

    Comment by Dan R Dumas | June 13, 2018 | Reply

  10. Ditto PH:

    When I was reading your statement “Yet COSP, in brazen disregard of the plain meaning of Article V….” I couldn’t help but think about this statement by Samuel Adams, who knew Tyrants only too well. Adams used nearly the same phrase you did, and I am confident, refers to precisely the same issue:

    “How strangely will the Tools of a Tyrant pervert the plain Meaning of Words! –Samuel Adams, Letter to John Pitts (21 January 1776).

    If we cannot trust COSP to be open and forthright on something so easy to check as the wording of the Constitution, then what lies in things we cannot check?

    Liked by 3 people

    Comment by M. Craig Elachie | June 13, 2018 | Reply

    • Nice to hear from you! I wrote this paper several months ago and sent it to the papers and Virginia Legislators then, but have been so busy I just now got around to posting it on my website.

      It is horrifying to see how some people will take COSP’s word for ANYTHING! COSP doesn’t prove what they say; what they say blatantly contradicts the recorded FACTS; yet the lemmings believe and repeat whatever COSP says!

      When I was arguing cases in court, when lawyers said, “in such & such a case, the Court held….”, the Judge would automatically extend his hand to receive a copy of the Opinion – which we were expected to have right then and there so the Judge & opposing counsel could read the case to see if it really did say what we claimed it said.

      COSP lemmings don’t know about the requirement of proving what one says!

      But fortunately, COSP’s misrepresentations are so blatant – and I know the original source documents and materials so well – that I can spot their misrepresentations a mile away.

      Liked by 1 person

      Comment by Publius Huldah | June 13, 2018 | Reply

      • Investigators frequently must deal with the issue of counterfeiting…and they have the task of discerning the difference between the genuine article and the counterfeit which just might be very very close, or something never seen before.

        The key to that problem is “Know the genuine,” know it intimately, then anything and everything that is not genuine, is by definition, counterfeit.

        Like

        Comment by M. Craig Elachie | June 13, 2018 | Reply


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