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Subjects Inside: Article V Applications  FAQ, Application Counts By Congress, Articles, AVC Legislative Report, CRS Reports, Convention of State, Compact for America, COS, CFA--Which States are Which?, The Historic Record of COS, COS, CFA Laws, COS Articles, CRS Reports on COS/CFA, COS, CFA Financial Records, CFA Financials, COS Financials, COS/CFA Financial Conclusions, John Birch Society, Con-Con, Runaway Convention, Who Called the Convention, Congressional Vote on a "Runaway" Convention, "Obey the Constitution, Only Two More States", Illegal Rescissions, The Phony Burger Letter, The Madison Letter, Fotheringham Exchange, JBS Articles, Sibley Lawsuit, General Interest, Article V.org, Robert Natelson, History of Article V, Counting the Applications, The Numeric Count History, Congressional Decision of May 5, 1789, Development of Article V, The Committee of the Whole, The Committee of Detail, August 30, September 10, Committee of Style, September 15, Official  Government Documents, History of FOAVC, Founders, Audio/Visual, Links, Contact Us, Legal Page, 14th Amendment, The Electoral Process, Packets, Definitions, Numeric, (Applications grouped by numeric count as required by the Constitution),  Same Subject (Applications grouped by amendment subject, not required by the Constitution for a convention call).

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Page 11 B--The "Numeric" Count Historic Record
There is no historic record of the "same subject" theory for counting state applications for a convention call. That concept of counting applications for a convention call was neither contemplated nor discussed in the 1787 Convention or afterwards. The public record shows "same subject" traces its origins to the JBS/Eagle Forum "Only Two More States" campaign (See: Page 6 C). "Same subject" was a necessary political creation for JBS/Eagle Forum in order to oppose the calling of an Article V Convention. As the states had already reached the required two thirds numeric count of applying state legislatures described in the Constitution on at least nine occasions before the JBS/Eagle Forum campaign began, without "same subject" there was no basis on which to oppose the calling of a convention.

Politically, JBS/Eagle Forum advocated "the Constitution should be obeyed as is." This political posturing meant JBS/Eagle Forum could not appear to outright advocate the Constitution be disobeyed (even though by urging a convention not be called when otherwise mandated they were doing exactly that). Thus the JBS/Eagle Forum had to create a pretense to explain why a convention was not yet mandated and thus could be prevented before the terms of the pretense were satisfied. Hence they created "same subject."

These facts explain why JBS/Eagle Forum have always advocated "same subject" as the basis for counting applications but never provided historic legal proof of "same subject" being the basis for counting applications prior to the commencement of their anti-convention campaign. Much like so-called "rescissions" likely JBS/Eagle Forum gave no consideration to whether "same subject" was legal or constitutional (See: Page 6 F Fotheringham Exchange). Ironically, the public record shows this pretense has also be satisfied by the states on at least four occasions (and was already satisfied prior to the start of the JBS/Eagle Forum campaign). Thus, whether by the "numeric" count as intended by the Founders or by the pretense of "same subject" as created by JBS/Eagle Forum, Congress is obligated to call a series of Article V Conventions.

The historic record supporting the "numeric" count of state applications for a convention call dates back to the records of the 1787 convention. James Madison and Alexander Hamilton who authored and seconded respectively what became the final version of Article V at the 1787 Convention both addressed the convention clause in great detail. Hamilton succinctly described the convention procedure, the obligation of Congress to call a convention and the basis for such obligation in Federalist 85 (published August 13, 1788). Madison discussed the procedure, obligation and basis for a convention call in Congress on May 5, 1789.

Excerpt from Federalist 85

Hamilton"In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing THIRTEEN STATES at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress 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. [Emphasis added]. 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.

If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. [Emphasis added]. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object."

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Hamilton stated emphatically the "peremptory" requirement that Congress call an Article V Convention was based on a numeric count of two thirds of the state legislatures. Hamilton made no mention of the applications needing to be on the same subject before Congress was required to call a convention. If Hamilton had believed this were the case he would have been required to explain this exemption because of the requirements of English grammar not to mention political consistency both of which he was obviously familiar.

The particular text of Article V emphatically states Congress shall "call a convention for proposing amendments" (plural). If, however, the text actually was intended to convey the convention was limited to the proposal of a single amendment (singular) as determined by Congress with the applications causing the call required to be all on the same amendment subject (singular) in order to obligate Congress to the task, then Hamilton would have been obligated, at the minimum, to explain how a word written in its plural sense actually meant its singular purpose and form. Given Hamilton fully understood the basics of English grammar and the political consequences of making such an obvious false statement, the only conclusion possible is Hamilton did not discuss this variation in text because the 1787 Convention did not intend that it was to exist.

Hamilton's reference to a "mathematical demonstration" to prove a political truth is final proof the 1787 Convention did not consider "same subject" to be the constitutional basis for counting applications. The obvious fact is that to "count" something means to use a series of numbers in sequential order to determine the total number of items in a collection, thus a mathematical demonstration. If the convention had intended "same subject" to be the basis of a "count" then the entire sentence of Article V, to satisfy the basis demands of English grammar, would be written entirely differently than that in the Constitution.

Some have suggested the phrase "enables the general and the State governments to originate the amendment of errors" [emphasis added] written by Madison in Federalist 43 proves the states (state legislatures) can propose amendments. This belief is misplaced. First, it is disproved by the record of the 1787 Convention. Second, those asserting this phrase as proof fail to read Article V for what it states. Article V clearly reads that Congress can only call a convention "on the application of two thirds of the several state legislatures." Thus, the state legislatures "originate" the amendment process of an Article V Convention. Madison does not write the "State governments can propose the amendment of errors." Instead, based on the record of the 1787 Convention, Madison was referring to the fact that the amendment process must start either in Congress or with the applications by the several state legislatures, hence, "originate."

FOAVC believes the plain language of the Constitution precludes "same subject" as the basis for counting state applications for a convention call. The Constitution clearly describes a convention for proposing "amendments" not "amendment." Thus, this plural form describing both the authority and limiting the purpose of the convention in a single phrase permits multiple amendment proposal by a convention which automatically precludes any action limiting the convention to a single amendment subject (except by its own autonomous decision). This includes any legislation, rule or call enacted by Congress intended for that purpose. The Supremacy Clause of the Constitution (Article VI, Clause 2) means Congress cannot change the text of Article V except by amendment and thus any legislation, rule or call attempting to limit a convention to the proposal of an "amendment" is unconstitutional.

The same principle applies to any language within an application or any state law enacted by a state legislature  "instructing" convention delegates to limit their agenda to a specific amendment subject. One state cannot dictate the actions of another. Thus a convention cannot be limited to proposal or discussion of a single amendment subject based on the instructions of a single state or group of states except by its own consent nor can the basis of the call which convenes a convention be limited by the pretense of "same subject."

Finally the rules of English grammar to which the delegates to the 1787 Convention were finely tuned are violated by this interpretation. The rules of English grammar forbid interpretation of the meaning of a word used in its plural sense to be that of its singular sense. Thus, when the word "amendments" is employed in a sentence the plural meaning of the word is attached, not its singular meaning, "amendment." Those proposing "same subject" are forced to violate the rules of English grammar in order to assert their position. If for no other reason than the rules of English grammar do not permit it, the assertion of "same subject" cannot be true as it requires the word "amendment" instead of the word "amendments" to be executed.
The Anti-Federalist View

A001A002A004A003During the ratification process of the Constitution (September 20, 1787 to May 29, 1790) the proposed Constitution was the most debated issue in America politics. The consequences of every provision in the proposal Constitution was debated extensively throughout the United States, including the Article V convention clause. Had the text of this clause meant state applications for a convention call must to be on the same amendment subject and were therefore subordinate to congressional interpretation prior to Congress calling a convention then constitutional opponents certainly would  have raised the issue.

The obvious weakness of permitting Congress total control of both modes of amendment proposal would not have been ignored. There is no record of any opponent (or supporter) raising this issue during the ratification debate. Indeed historic record makes it clear the text of the convention clause in Article V was so evident and plain even the opposition to the Constitution acknowledged its meaning and intent as that as described by Hamilton. The convention was a "popular ratification" convention elected by the people independent of any control by the state legislatures textually assigned by Article V to execute a portion of the amendment process. Records of the Anti-Federalist papers written by prominent political figures in American (such as George Mason and Elbridge Gerry) primarily used pseudonyms in their writings to oppose ratification of the Constitution. Discussion of the amendment process as a perceived weakness was described in Anti-Federalist 49 and makes this point even more clear (click images to enlarge).

Instead of "same subject" however the perceived weakness of the Constitution discussed in Anti-Federalist 49 was "states, as states, could not propose amendments to the Constitution." Thus even the opposition to the Constitution recognized and understood, the people in convention were empowered to propose amendments not the states. The term "states" was also clearly understood and referred to the ability of state legislatures to propose amendments to the Constitution. Thus, even before the Constitution was ratified it was acknowledged by those present at the time and able to discuss the matter directly with those who attended the 1787 Convention, there was no such thing as a "Convention of the States." The finished version Article V always intended it was a "Convention Of The People." The author "Massachusettensis" did not agree with this fact but clearly understood that was the intent of Article V. Anti-Federalist efforts ultimately led to the proposal of the Bill of Rights in order to satisfy their objections (See Page 6 F). However the fact state legislatures cannot propose amendments to the Constitution remains in place to this day and was not addressed by a constitutional amendment.

Continued to Page Eleven C
Page Last Updated: 9-APRIL 2017