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Sunday, December 30, 2018

Chapter 4: My Book on the Calling of the First Article V Convention of the States

Chapter Four


Monday, April 3, 2017
Morning

Come Senators, Congressmen
Please heed the call
Don't stand in the doorway
Don't block up the hall

Bob Dylan

“Oyez! Oyez! Oyez! All rise! All persons having business before the Circuit Court for the District of Columbia are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court. The Honorable Chief Judge Merrick Garland presiding.” The Bailiff then turned as the door behind the bench opened and all eyes watched as Judge Garland, berobed all in black, entered and took his seat before the packed courtroom.

“Please be seated.  Madam Clerk, please call the case docketed for this morning.”  Judge Garland said.

Sibley v. McConnell & Ryan, Case No.: 5259.” The Clerk said.

“Thank you Madam Clerk.  Would counsel please identify themselves for the record?”

“Peter R. Maier, Special Assistant United States Attorney, Counsel for the Honorable Mitch McConnell.”

“William Pittard, Deputy General Counsel for the Honorable Paul Davis Ryan”.

“Montgomery Blair Sibley, in proper per, your honor.”

“Thank you.  I have called you here today to announce the Court’s decision in Sibley v. McConnell & Ryan.  The reason for this extraordinary oral announcement will be made clear shortly and the written decision will be made available to all interested parties -- and I see a large number of the members of the Fourth Estate present -- at the conclusion of my rendering the decision.”

“While that written decision has the complete reasoning and specific case citations included, my oral decision today will omit those legal niceties in the interest of making this proceeding as clear and brief as possible.”

“In this appeal, Appellant, Montgomery Blair Sibley by the suit below sought: (i) A Declaratory Judgment that Sibley has the right, possessed by every United States Citizen, to require that the federal government be administered according to law; and, (ii) A Declaratory Judgment that Applications to Congress have been made by the Legislatures of two-thirds of the several States for a Convention for Proposing Amendments to the United States Constitution thereby obligating Congress to Call such a Convention which, to date, Congress has failed to call; and (iii) A Writ of Mandamus directing Congress to carry out the affirmative action of Calling for a Convention for Proposing Amendments to the United States Constitution.”

“As to the first issue, the Court agrees with Mr. Sibley that every Citizen has the right to require the government to be administered according to law.  To have such a right without a concomitant remedy would render such a right meaningless. Simply stated, the People did not create a system of law which does not satisfy certain moral minima for such would not to be a justice system but instead just-a-system.  Simply stated, an unjust positive law – such as the doctrine of “standing” that McConnell and Ryan argue prevents Mr. Sibley from bringing this suit – must be refused to be recognized by any judge if the injustice created by the law is so great that it no longer deserves the title of law.  Here, that injustice is the notion that no person can challenge Congress’ failure to discharge their obligation under Article V to “call” a convention.”

“In his second point, Sibley argued that Congress has the obligation to call an Article V Convention of the States as it has received the requisite 34 applications from the States -- a point that McConnell and Ryan do not dispute.”    

“Rather, McConnell argued that: ‘the Speech or Debate Clause of the Constitution, Article I, section 6, clause 1, bars Sibley’s claims because they arise out of an alleged failure to take legislative action.’  The Court agrees with Sibley that the Article I, section 6, clause 1, Speech or Debate Clause right cannot be conflated with the Article V duty to “call” a convention.”

“As expressed by those who knew the drafters of the Constitution: ‘The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the constitution, the departments may be regarded as independent of each other.  But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed.’”

“Accordingly, Congress, no less that the Executive or Judicial branches, is ‘subject to regulation by law touching the discharge of the duties required to be performed.’  Among those ‘duties required to be performed’ by Congress is that ‘duty’ found at Article V, which states in pertinent part: ‘The Congress, . . . 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 Court’s attention is drawn to the imperative verb ‘shall’.  It leaves no discretion in Congress and requires the purely ‘ministerial’ act of the ‘call’.  The definition of ‘ministerial’ is well-settled in the jurisprudence of the United States. In the 1866 case of Mississippi v. Johnson the Supreme Court stated: ‘A ministerial duty, the performance of which may, in proper cases, be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion.  It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law. . . . There was no room for the exercise of judgment. The law required the performance of a single specific act; and that performance, it was held, might be required by mandamus.’”

“Here, Article V has prescribed a ‘simply, definite duty’ upon Congress.  The ‘conditions’ upon which this duty arises have been ‘proved to exist’ as demonstrated by the thirty-five (35) Applications referenced in Exhibit “A” to Sibley’s First Amended Complaint in this matter.”

“The Supreme Court agrees -- and thus so must this Court -- with Sibley when it stated in 1931 in United States v. Sprague: ‘[A]rticle 5 is clear in statement and in meaning, contains no ambiguity and calls for no resort to rules of construction. . . . It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them.’”

“For this Court to allow Congress the liberty of refusing to avoid their express duty’ and then hide from review and enforcement of that duty under the Speech or Debate clause would render the promise of articulated by the Supreme Court in the 1922 case of Fairchild v. Hughes that every Citizen of the United States, possesses the general right: “to require that the Government be administered according to law. . . .” a right without a remedy and thus a cruel farce.  As such, the Court rejects McConnell’s argument that the Speech and Debate clause bars Sibley’s action.”

“Ryan on the other hand argues that Sibley is seeking to raise a nonjusticiable Political Question and thus this Court has no authority to intervene.”

“Alexander Hamilton in the Federalist No.: 85 stated: ‘It is this: 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, 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.”

“Accordingly, Ryan’s claim that he can ignore the ‘peremptory’ words of Article V by hiding behind the Political Question doctrine is an aberrant violation of the carefully-balanced distribution of power between the People, States and the federal government.  Simply stated, to bar Sibley’s suit by this judicially-created device of the Political Question defense would allow the central government to ignore the pleas of the States thus putting Hamilton’s promise to waste.”

“An Article V Convention ‘call’ is a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in the Constitution: Conducting a numeric count of the applications to determine that two-thirds of the States have applied for a convention.  At that time, Congress cannot refuse to ‘call’ a Convention once it has received – as it is agreed here that it has – 35 ‘applications’.

“At its heart, Article V acts as the cover letter.  It is a set of instructions that the Framers left providing the terms on which future generations may add a new chapter to our Constitutional chain novel.’   Hence, there is no ‘legislative Powers’ resident in an Article V act; to hold so would allow the federal Congress to erase the power of the States to ‘call’ a convention by setting impossible limits upon the triggering of the duty to make the obligatory ‘call’”.

“Therefore, the duty to ‘call’ an Article V Convention to Propose Amendments is not defeated by the Political Question doctrine.”

“In sum, the ministerial duty to ‘call’ an Article V Convention to Propose Amendments is not barred by either the Speech or Debate clause or the Political Question doctrine.”

“This brings me to Sibley’s final point: A request for an Order of this Court in the nature of Mandamus to direct Congress to discharge its Article V obligation.  Given the grotesque, long-standing and continued violation of Article V by Congress, this Court is taking the extraordinary measure of invoking its authority under the All Writs Act of 1789 to issue the following Order:  

“Within thirty days of today, Congress shall ‘call’ a Convention or be held in Contempt of Court for failing to do so.  In that event, the Court will order the U.S. Marshall Service to take every member of Congress into custody where they will remain until such time as their aforementioned Article V duty has been discharged.”

“Moreover, to avoid in prevarication by Messrs. McConnell and Ryan, let me make this clear.  The ‘call’ shall: (i) set the convention no more than 6 months from today to be held in Washington, D.C. and (ii) set asides funds of initially no less than $10 million to cover the costs of the logistics of holding such a Convention.

“Last, in the interest of judicial economy, the parties will submit to the Court legal briefs within 10 days outlining the procedures such an Article V Convention should follow.  Upon the Court’s review of those legal briefs, the Court will issue its order governing the procedures for the Convention.

“It is so ordered.”

Judge Garland stood and said: “The Court is now in recess” and promptly left the Courtroom which, not unexpectedly, erupted into pandemonium.

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