Convention to propose amendments to the United States Constitution–
State ratifying conventions–
PART 3 OF 4
State ratifying conventions are one of the two methods established by Article V of the United States Constitution for ratifying proposed constitutional amendments. Ratifying conventions have only been used on one occasion, that being for the ratification of the Constitution’s 21st Amendment in the year 1933. All other proposed constitutional amendments have been offered to the state legislatures for ratification.
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 thereof, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….
Use of the convention ratification option
Ratification of a proposed amendment has been done by state conventions only once—the 1933 ratification process of the 21st Amendment. The 21st is also the only constitutional amendment that repealed another one, that being the 18th Amendment, which had been ratified 14 years earlier.
As is true for a state legislature when ratifying a proposed federal constitutional amendment, a state ratifying convention may not in any way change a proposed constitutional amendment, but must accept or reject the proposed amendment as written.
Because they incorporated the convention method of ratification into Article V as an alternate route to considering the pro and con arguments of a particular proposed amendment, clearly, the framers of the Constitution wanted a means of sometimes bypassing the state legislatures in the ratification process.
To some extent, the convention method of ratification loosely approximates a one-state, one-vote national referendum on a specific proposed federal constitutional amendment, thus allowing the sentiments of registered voters to be somewhat more directly felt on highly sensitive issues. The theory is that the delegates of the conventions—who presumably would themselves be average citizens—might be less likely to bow to political pressure to accept or to reject a given amendment than would be the case with state legislators. The United States Supreme Court has ruled that a popular referendum is not a substitute for either the legislature or a ratifying convention—nor can a referendum approve of, or disapprove of, a state legislature’s, or a convention’s, decision on an amendment (Hawke v. Smith, 253 U.S. 221, ).
New Mexico law provides that the members of its legislature would themselves be the delegates and form such a ratifying convention—if Congress were to again select that particular method of ratification. The issue having never come before the federal courts, it is unclear whether this New Mexico state law violates Article V.
Applicable state laws
In a state’s legislature, the ratification method is procedurally simple—merely propose a resolution, memorial, or proclamation of ratification and vote it up or down in each chamber of that state legislature. But using the convention method of ratification is a bit more complicated because it is, by necessity, separate and different from a state legislature. As early as the 1930s, state lawmakers enacted laws to prepare for the possibility of Congress specifying the convention method of ratification. Many laws refer to a one-off event, with an ad-hoc convention convened solely for the purposes of the 21st amendment. Other laws, however, provided guidelines for ratifying conventions in general.
Once Congress has proposed a federal constitutional amendment which Congress specifies is to be ratified by the convention method, Vermont’s governor has 60 days to call for an election of delegates to that convention, and the setting of a date for those elections. Note that the Vermont code does not contemplate the calling of ratifying conventions from a national amendment convention, though the same procedures would likely be followed.
Fourteen persons are elected to be members of the ratifying convention. Those 14 would be elected statewide, meaning that each voter would cast votes for fourteen people, with the top fourteen vote-getters being elected. The election must take place from three to twelve months after the governor’s call. The convention must begin 20 to 30 days after the election. The convention itself is held in the Senate chamber in the state capital.
The candidates who are seeking to become delegates are selected from a list of 28 possible Vermont citizens. All 28 candidates are selected by the governor, lieutenant governor, and speaker of the house. The persons selected must agree to be placed on the ballot – 14 of whom are opposed to ratification, 14 of whom are in favor. The ballots are to be plainly marked so that voters can decide based on the candidate’s stand on the issue, or on name recognition. The state has 14 counties – each county is to have one “pro” and one “con” candidate. Voters can vote for all “For” or all “Against,” or any combination thereof.
The elected delegates meet on the appointed date, with the majority of those elected being a quorum. The Vermont code does not detail how the convention is to conduct its business aside from the fact that there will be a chairman and that the secretary of state will be the secretary of the convention, and those two persons will certify the results of the convention’s vote. The convention might only last 15 minutes, or it could drag out for several days for debate. However long the convention takes, delegates are provided a stipend of $10.00 and reimbursement of actual expenses.
In Florida, the convention is made up of 67 members. The governor has 45 days to call an election to be held from five to ten months after Congress proposes the constitutional amendment. Anyone can apply to be a member of the convention, with the state qualifications for the Florida House of Representatives used as an eligibility test. Candidates can officially declare that they are “for” or “against” the proposed amendment, or they may apply as unannounced. An application fee of $25 and a 500-name petition are also required. On the ballots, candidates are listed in three categories: “for”, “against”, and “undecided”. There is also provision for write-in candidates. The vote is at-large, meaning that the 67 top vote-getters statewide win the 67 seats in the convention. The convention begins on the second Tuesday following the election. Delegates are not compensated per diem or for expenses.
New Mexico example
The procedure in New Mexico is vastly different. To start, the governor has only 10 days to call a convention—with each sitting member of the New Mexico Legislature automatically a delegate to the convention. Therefore, no special election is ever called for determining delegates. The convention is held in the chamber of the House of Representatives. New Mexico’s code provides that, after three days, compensation to delegates will end.
- This page was last modified on 31 December 2015, at 14:08.
|Constitutional Convention & Conference of States|
|States With a Standing Call for a Constitutional Convention
The remaining 18 states have not called for a convention. Citizens must keep a vigilant watch to block legislation in any of these states that calls for a Con-Con.
Although 32 states had initially passed resolutions calling for a Con-Con (for the alleged purpose of adding a Balanced Budget Amendment to the Constitution), 3 states — Alabama, Florida and Louisiana — rescinded their calls.
The Nevada House of Representatives “purged” its resolution. However, since both chambers passed the resolution, it is questionable whether the one-chamber purge would be accepted as a rescission. Conversely, it has been argued that because the resolution was actually purged from the records it would negate the initial resolution, since it must pass in both chambers.
We should not consider Nevada’s purge, nor the rescissions of Alabama, Florida and Louisiana as a safety margin.
According to Article V of the Constitution, Congress must call a convention when 2/3rds of the states apply. That magic number is 34 states. Since three states have formally withdrawn (rescinded) their calls, that would seemingly leave us 5 states away from having a Con-Con. However, we have been informed that the advocates of the convention are waiting to capture not five, but only two more. It is said that if they get two more states to pass resolutions for a Con-Con, they plan to challenge the rescissions of the three states and throw them into the courts while going ahead with a convention.
Considering the blatant corruption in courts at all levels today, it would be folly to rest on our laurels and feel safe that the courts would uphold those rescissions. For that reason, it should be considered at this time that only two states are needed to require the Congress to call a Constitutional Convention.
After experiencing the onslaught of lawyers (scribes, as in “scribes and Pharisees”) in Florida’s presidential election fiasco, can you imagine the hay-day they would have with a court battle of this magnitude and importance?