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Heritage Foundation Engages Article V -But What About the Six Founder Quotes?

In a very neutral piece covering the Article V movement generally, the Heritage Foundation's John Malcolm recently spotlighted the Balanced Budget Compact effort! You can read it here.

Overall, the policy brief is carefully crafted to please and offend no one. It is a view of the state-initiated constitutional amendment movement from "Olympus."

Significantly, to maintain that vantage point, Heritage offers no discussion of the Six Founder Quotes, discussed below, that unequivocally vindicate state control over an Article V convention through the call-triggering application.

But this omission is actually fortuitous. It positions Heritage Foundation to serve in a very important role: as neutral arbiter. In this role, Heritage could finally force a real debate and discussion of the original meaning and purpose of Article V among both opponents and supporters.

We urge Heritage to seize the day.

And to start that debate, we lay down a challenge to Professor Michael Paulsen, as well as the good and honest people at Eagle Forum and John Birch Society, to address what they never address in their attacks on efforts to organize the states to use their power to propose amendments by convention. We also challenge our fellow travelers in the Article V movement who prefer organizing a convention without any specific amendment in mind to grapple with the Six Founder Quotes as well.

Specifically, we dare them to explain how the following Six Founder Quotes are consistent with a view that an Article V convention was meant to be uncontrolled by the states' call-triggering "application" or that the application cannot limit the deliberations of the convention to one or more specific amendments:

  1. Federalist law professor George Nicholas’ June 6, 1788 statement at the Virginia convention that state legislatures would apply for an Article V convention confined to a “few points;” and that “it is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.” Notice how Nicholas’ conclusion is only “natural” with the expectation that the states would typically organize a convention with a narrow and preset agenda, and only after first agreeing on one or more amendments specified in their Article V application.

  2. Political economist and Virginia delegate Tench Coxe’s representations on June 11, 1788 that: “If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.” Coxe further explained, “[t]hree fourths of the states concurring will ensure any amendments, after the adoption of nine or more.” Notice that these statements clearly indicate that two-thirds of the states would specify and agree on the desired amendments in their Article V application.

  3. James Madison’s representation in Federalist No. 43 that the power of "state governments" to originate amendments is equal to that of the "national" government, which could only be true if the Article V application had the power to specify and target the convention to desired amendments.

  4. Alexander Hamilton’s representations in Federalist No. 85 that all amendment proposals under Article V, logically including even those originated by the states, would be brought forth without “give or take” and “singly;” that “nine” states [two-thirds] would effect “alterations,” that “nine” states would effect “subsequent amendment” by setting “on foot the measure,” and that we can rely on state “legislatures” to erect barriers. These statements all anticipate the amendment-specifying power of an Article V application, which alone is entirely controlled by two-thirds of the states through their legislatures; as well as a narrow and preset agenda for an Article V convention.

  5. George Washington’s representation in his 1788 letter to John Armstrong that “nine states” can get the amendments they desire, which indicates that two-thirds of the states would specify the desired amendments in their Article V application and target the convention agenda accordingly.

  6. James Madison’s 1799 Report on the Virginia Resolutions, which observed that the states could organize an Article V convention for the “object” of declaring the Alien and Sedition Acts unconstitutional. Specifically, after highlighting that “Legislatures of the States have a right also to originate amendments to the Constitution, by a concurrence of two-thirds of the whole number, in applications to Congress for the purpose,” Madison wrote both that the states could ask their senators to propose an “explanatory amendment” clarifying that the Alien and Sedition Acts were unconstitutional, and also that two-thirds of the Legislatures of the states “might, by an application to Congress, have obtained a Convention for the same object.” Again, the Application is the stated source of the desired amendment, and the anticipation is that Article V would be targeted to a specific amendment, not a drafting convention with a broad agenda.

We would think that an honest opponent of Article V (or a proponent of a broad agenda drafting convention) would address the Six Founder Quotes and at least explain how their theories are consistent with them.

They never do.

But it is easy for Compact for America to do this. As discussed in A Guidebook for Deploying Article V as the Founders Actually Intended: The Application & Convention Mode of Proposing Amendments, the Six Founder Quotes confirm that Article V means:

  • two-thirds of the states jointly petition, i.e. join in an "Application," through their legislatures for one or more amendments to be proposed by a meeting of state representatives called a "convention;"

  • Congress must call the convention in response to the states' petition; and

  • the convention's authority is limited to the specific requests made in the states' petition.

The Balanced Budget Compact is simply a wrap-around safety blanket to ensure that the specific federal Balanced Budget Amendment desired by the states as specified in their Application is what the convention actually proposes! The Compact also delivers greater speed and certainty to the legacy Article V process by consolidating all necessary elements of the amendment process in one state bill and one congressional resolution.

In other words, we take the Six Founder Quotes seriously.

The question, laid on the table, is: Who else does?

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