HISTORICAL ANALYSIS OF STATE LEGISLATURE AUTHORITY UNDER ARTICLE V
Article V and Article
1, Section 10
The State Legislatures alone have the
authority to “limit” the agenda and authority of a Federal Amendment Convention. The
Constitution does not authorize "Open" Constitutional Conventions. The State
Legislatures alone can
Call for a “Single Issue” Convention to propose Amendments .
When the States Call on
Congress to convene a Single Issue Amendment Convention and simultaneously enter
into separate and independent Delegate Resolutions that governs
the conduct of their delegates at a convened Convention, the purpose, terms,
conditions, duration and text for the Amendment are predetermined. Only 26
States are needed to provide a safe, predictable and successful outcome at the
Convention. The Delegates sent by State Legislatures to a Convention are
Ambassadors of their States - they are not independent agents as some have
Under Article V, State Legislatures can also
enter into Interstate Agreements for the purpose of amending the
Constitution. Article 1, Section 10 is subjugated to Article V, otherwise
the sovereign authority of the States would be meaningless because exercising
such authority would be conditional upon the whims of Congress, the Courts and
Executive Branch. In order to avoid relentless attacks on States
rights and undermine Article V if Interstate
Agreements were adopted, Citizen Initiatives is advancing Delegate
If the Founders had omitted the option for the
States to Call for Conventions in Article V, it is very doubtful that the new
Constitution would have been ratified by the States. Why would the
Founders allow the States to Call for a Convention for the purpose of proposing
Amendments only if Congress and the Courts agree to convene a Convention?
reserves to State Legislatures the right to "Call" for Federal Amendment Conventions for the purpose of proposing Amendments when Congress,
the Courts and/or the Executive Branch refuse to address an egregious
wrong suffered by the people.
- United States Constitution -
"The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention
for proposing Amendments, which, in either Case, shall be valid to all
Intents and Purposes, as Part of this Constitution, when ratified by the
Legislatures of three fourths of the several States, or by Conventions in
three fourths thereof, as the one or the other Mode of Ratification may be
proposed by the Congress; . . . "
The Constitution guarantees to every State a Republican
for of Government which gives each State
equal standing when Calling for a Convention.
Section 4 - United States Constitution -
“The United States shall guarantee to every State
in this Union a Republican Form of Government, . . . ”
Legislatures must understand that they presently have the sovereign authority to be the
final arbiters in all Constitutional matters. If they allow Congress, or
the Courts, or the Executive Branch (Federal or State) to define their sovereignty, they will be abdicating their authority
forever. They will not get it back. To protect and re-empower the
Constitution so that it conforms more closely to original intent of the Founders
State legislatures must take up their Constitutional authority and duty by
advancing selected Single Issue Amendment Conventions.
The States can
reclaim the economic and moral high ground in America. We can reclaim our
economy and Constitutional heritage through "Single Issue" Amendment
one grievance at a time.
Agreements (prohibitions in Article
I, 10) and "Delegate Resolutions"
Article I, Section 10 prohibits the States from
entering into interstate compacts (agreements) .
The Founders, when they inserted Article V into
the Constitution authorizing State Legislatures to Call on Congress to convene
a Federal Amendment Convention for the purpose of proposing Amendments,
intended to give to the States an
"Absolute Right" to Call for a Convention, without the consent of Congress or the Courts,
or Executive Branch. They were representing their State Legislatures at
the Constitutional Convention and intended to preserve for their States the
same sovereignty the State Legislatures had in the Articles of Confederation with
the exception that a unanimous vote by the Legislatures to change the Articles
would be changed to a 3/4's vote in the new Constitution. The States
never relinquished their sovereignty when ratifying the new Constitution.
They certainly never intended to allow their authority to be defined by Congress,
or the Courts or the Executive Branch.
Article I, Section 10 was to be superseded by
Article V if and when State Legislatures decided to amend the Constitution.
To conclude otherwise would prevent the States from changing the prohibitions
in Article I, 10 which in turn would make a mockery of
their authority in Article V for proposing Amendments.
Interstate Agreements are the preferred
way to Call for a Single Issue Convention and to define the duties and authority of delegates at a
Convention. After 26 Calling States enter into an Interstate
Agreement the outcome at the Convention
would be assured and successful.
Delegate Resolutions are resolutions passed by
State Legislatures to define the duties and authority of the delegates that
the Legislature sends to a convened Convention. Each State Legislature
enacts its own Delegate Resolution independent of all other States. The
terms, conditions and text of the proposed Amendment are identical for each
Delegate Resolution, but the instructions in the resolution are to a State
Legislature's delegates only. In this way there is no compact
between the States and no possible violation of Article I, Section 10.
Each "Single Issue" Amendment Convention has
its own unique Delegate Resolution. None of the resolutions are part of
an Interstate Agreement. By having similar wording and the identical
text for the proposed Amendment, the States can control the deliberations at a
Convention with only 26 States. Delegates at the Convention would have
only one decision to make: "Should the proposed Amendment be returned to State
Legislatures for ratification." The delegates would have no authority to
consider any other matter and they would have no authority to alter the
Constitution in any way beyond the proposed Amendment.
the Constitutional Convention inserted Article V and the option for the
State Legislatures to Call for a Convention because they wanted to check the power of
Congress and the Courts when an egregious wrong suffered by the people is
not addressed by the government. It would be irrational and
illogical to think that the Convention option for the States was
inserted by the Founders with the understanding that any Call by the
States would first require approval by Congress or the Courts.
Article I, Section 10 is superseded by Article V and should not restrict
State authority when Calling for a Convention to propose Amendments.
It is important to remember that the Colonies, when they agreed to write a
new Constitution, knew that they already had veto power when altering the
Articles of Confederation. Article V was their way to carry that
authority over into the Constitution and instead of requiring a unanimous
vote to change the Articles, the new Constitution would require only three
quarters of the States to ratify Amendments to the Constitution. The
Founders never intended to abdicate their State's (Colony's) authority
(sovereignty) by allowing Congress and the Courts to veto or alter their
Calls for a Convention. To think otherwise means that State
Legislatures would have to sheepishly approach Congress when Calling for a
Convention and only if Congress or the Courts agreed with their Call would
the States be able to have a Convention. If prior Congressional
approval or judicial consent is needed, then Congress and the Courts
hold the ultimate authority, not the States, when Calling for a
Convention. The States, in effect, would be impotent to address any issue
through a Convention without Congressional approval or a favorable
decision by the Supreme Court. If the States allow for this convoluted flawed
Constitutional thinking to stand, then they will have abdicated their
authority and sovereignty under Article V.
Article I, Section 10 - United
"No State shall
enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and
Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver
Coin a Tender in Payments of Debts; pass any Bill of Attainder, ex post factor
Law, or Law impairing the Obligation of Contracts, or grant any Title of
No State shall,
without the Consent of the Congress, lay any Imposts or Duties on Imports or
Exports, except what may be absolutely necessary for executing it's
inspections Laws: and the net Produce of all Duties and Imposts, laid by any
State on Imports or Exports, shall be for the Use of the Treasury of the
United States; and all such Laws shall be subject to the Revision and Controul
of the Congress.
No State shall,
without the Consent of Congress, lay any Duty or Tonnage, keep Troops, or
Ships of War in time of Peace, enter into any Agreement or Compact with
another State, or with a foreign Power, or engage in War, unless actually
invaded, or in such imminent Danger as will not admit of delay."
excerpt is taken from the Marquette Law Review, Vol. 36, Winter,
1952-53, No. 3:
One writer, in
considering the distinction between a treaty and a compact, makes the
which the framers of the Constitution intended to draw between agreements
unconditionally prohibited and those permitted with the consent of
Congress is not apparent from the language of the Constitution itself. Nor
is aid to be derived from literature contemporary with the Constitutional
Convention. There was little or no discussion of these two clauses while
the Constitution was in making, and the question has never been judicially
determined. Story maintained that the terms 'treaty, alliance, and
confederation' applied to treaties of a political character, such as
'treaties of alliance for purposes of peace and war; and treaties of
confederation, in which the parties are leagued for mutual government,
political cooperation, and the exercise of political sovereignty; and
treaties of cession of sovereignty, or conferring internal political
jurisdiction or external political dependence, or general commercial
privileges'. The terms 'agreement' and 'compact' referred, in his opinion,
to 'private rights of sovereignty; such as questions of boundary;
interests in land situated in the territory of each other; and other
internal regulations for the mutual comfort and convenience of states
bordering on each other.'"
41304 U.S. 92, 104
(1938). 4231 YALE L. J. 635