Sunday, January 27, 2019

Chapter 8: My Book on the Calling of the First Article V Convention of the States

Chapter Eight

Friday, April 14, 2017
10 a.m.

I dared not trust the case on the presumption that the court knows everything. In fact, I argued it on the presumption that the court didn't know anything.

Abraham Lincoln


Judge Garland’s courtroom was packed and he had arranged for camera’s to carry the arguments live through C-SPAN to the nation.

“Good morning everyone, I have set the hearing today for oral arguments on the questions regarding the logistics of the Article V convention to propose amendments.  I am pleased that Congress last night unanimously approved a resolution finding that its obligation to call such a convention to propose amendments -- a ConProAm -- has been triggered.  Moreover, the resolution budgeted $10 million for the ConProAm to be initially spent pursuant to my direction.  Though, I would have thoroughly enjoyed releasing the U.S. Marshals to round them up, I am glad we are making progress.”

“I will ask the parties to address each of the three pending question in turn.  First, how are the states to select their delegates to the ConProAm?  Second, how will the ConProAm be organized? Last, any operational issues that need to be addressed to ensure a smooth operation.  I will hear from Counsel for Congress first on the first question.”

Mr. Pittard for Congress rose and walked to the podium. “Your honor, on behalf of the Congress, I appear to argue as more fully detailed in our brief, that the selection of delegates to the ConProAm should follow the House of Representative selection scheme.  That is that there would be an election in each congressional district and 2 statewide elections, giving us 535 total delegates, each chosen by the people.  Those delegates would then convene, meet and when 268 of them agreed upon a proposed amendment, it would then be forwarded to the State legislatures for ratification.”

“Mr. Pittard” Judge Garland said, “I have read your brief which proposed that method for selecting the delegates and I failed to find any historical precedent for that scheme.  Did I miss something?”

“No judge, but of course there is little historical precedent as you know there has never been a ConProAm before.  Indeed, while our founders delegated to the State the right to have such a Convention in the Constitution, they were silent as to how it would operate.  Hence, we are arguing that following the Congressional scheme will allow a broad spectrum of the citizens to be represented at the ConProAm.”

“Mr. Sibley, would address this point?”

“Thank you Judge” said Blair, rising to approach the podium. 

“Mr. Sibley, are you wearing a kilt?”

“Yes your honor, the Clan Blair tartan which seemed appropriate given the importance of today’s proceedings.  And if females may wear pants in your courtroom, then surely men can wear un-bifurcated, below the waist garments.”  Realizing he had no answer to that statement, Judge Garland just smiled and motioned Blair to proceed.

“But let me address your first question, and in so doing completely disagree with Mr. Pittard.  The selection of delegates to the ConProAm is entirely within the discretion of the States.  Congress has been granted no authority to intervene whatsoever.  As this Court wells knows, under the 10th Amendment: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Here, the only power delegated to the United States is to “call” a convention.  After that act, the federal government has no role in the ConProAm.”

“Moreover, what Mr. Pittard suggests is appalling to the very sense of federalism upon which our Nation was created as embodied in the 10th Amendment.  As you know, that Federalism is the sharing of power between national and state governments as divided by the Constitution.  Here, to suggest that the national government should have any role in the operation of a ConProAm is an anathema to the very reason this alternative path to amending the Constitution exists.”

“Finally, in response to Mr. Pittard, I ask the Court to take notice of the grotesque gerrymandering of Congressional districts permitted by Congress to create a Congress that does not represent the People, but rather organized to insure the perpetuation of the two party system.  Adopting Mr. Pittard’s proposal would only allow such special interests to dominate a convention.”

“As I have stated, and my brief fully details, the federal government has no authority over any aspect of the ConProAm, particularly as to the makeup of the delegates. This naturally flows as the whole purpose for a ConProAm was to protect the states from a corrupt or recalcitrant Congress. The only limitation that I would argue that must be imposed on that State discretion on delegate make-up is that imposed upon the States by the Fourteenth Amendment.  That is to say, in selecting delegates, the States could not violate any of the federally-guaranteed rights that individuals are accorded by our Constitution, such as equal protection, freedom of speech, etc.”

“To briefly summarize what I more fully detail in my legal brief submitted to the Court, the historical record on the federal conventions and contemporaneous State conventions compels no other conclusion than that the States control whether they want one delegate or one thousands delegates at the ConProAm.”

“In 1787, when Article V was adopted which reserved unto the States the right to call for a “convention”, that term was well understood.  Indeed, Congress had already called a convention in York, Pennsylvania, in 1777, which dealt with price inflation; a convention in New Haven, Connecticut, in 1778, to address wartime economic regulation; another convention in Hartford, Connecticut, in 1779 and a second Hartford convention in 1780 addressing price stabilization, and the federal taxing power. There also was a Philadelphia convention in 1780 which addressed issues of price stabilization. Finally, there was the Annapolis, Maryland convention of 1786, which addressed commercial issues.  Simply stated, there were many conventions and they all had a clearly and universally recognized procedure.  With the formation of a working Congress, We the People have forgotten this public way of addressing pressing political concerns.”

“Your honor, from this extensive historical record, the path for you to follow to resolve the First question related to delegate selection is clear:  The delegates are agents of their state legislatures. They are subject to the instruction of the state legislatures and it is those legislatures that solely have the power to determine how the delegates are selected; be it by vote or lottery.”

 “Thank you Mr. Sibley.  Now Mr. Pittard, would you address my second question: How will the ConProAm be organized.”

 “Your Honor” Pittard started, “while we recognize that we must follow your Order regarding the ‘calling’ of the Con-Con . . .”

 “Mr. Pittard,” Judge Garland interrupted, “I think we will stop using that misleading contraction ‘Con Con’ and employ Mr. Sibley’s more accurate ‘ConProAm’, if you please.”

 “Certainly Judge.  However, there are several matters that we believe Congress has exclusive authority to resolve.  In particular, (1) when and how a convention must be convened; (2) whether the applications of the required number of states must be identical or seek the adoption of substantially the same amendment or whether they need only address the same subject matter; (3) whether the required number of petitions must be filed contemporaneously or substantially so, or whether they may be lodged over several years; and (4) whether a convention may be limited to consideration of the amendment or the subject matter that it is convened to consider. The presence of these questions -- and surely others -- refutes Mr. Sibley's contention that Congress' role in the amendatory process is only ‘ministerial’, i.e., issuing the ‘call’ and then stepping aside.”

 “Mr. Pittard”, Judge Garland interrupted, “your first three points are moot; I am surprised you are wasting my time re-arguing them.  The ConProAm has been called which leaves only your last point.  Is the ConProAm limited to a single issue?  Do you have any authority for that proposition?”

 “Your honor, the concern of my clients is that a ConProAm unlimited in scope could become the locus of special interests advancing their own agendas.  Hence, my clients respectfully suggest that the Court limit the scope of the ConProAm to only those issues raised in the various petitions to Congress from the States.”

 “Mr. Sibley, would you like to be heard on this point?”

 “Thank you Judge.  The answer to this question is resolved by returning to Article V which, as you know, states in pertinent part, that Congress shall: ‘call a convention for proposing amendments.’ The use of the plural ‘amendments’ is dispositive of this question.  Had the Framers wanted a tighter leash on the ConProAm they certainly would have added language to so limit the ConProAm’s scope.  This is a State generated convention created so that the States can address as is their fundamental right, the scope of the federal government.  Hence, it is not for the federal government -- here through Congress or this honorable Court -- to limit what these sovereign states can propose. As such, the scope issues that the ConProAm may consider and propose, is, in a word, unlimited.”

 “Thank you gentlemen.  Now let’s turn to the next question.  I want to give the ConProAm a clear framework in which it will operate in order to insure a smoothly operating convention.  Mr. Pittard, any thoughts you want to share on this point?”

 “Not particularly, your Honor.  You have made it fairly clear that Congress has little, if any role, in the operation of the Convention” said Mr. Pittard, sitting down and tossing his pen on his legal pad like a petulant child who isn’t getting dessert.

 “Mr. Sibley, I have read your extensive brief on this issue, but would you summarize your main points again” Judge Garland said turning to Blair.

 “Thank you Judge” Blair said, rising and moving to the podium. “First, I want to challenge the oft-repeated argument that: ‘The only federal convention that’s ever been held was the one that met in Philadelphia in 1787, and that’s the only precedent available.’  That is simply wrong, a convention, was a favorite device of the founding generation to address national issues.”

 “Though each state had their own state conventions, when the convention was a meeting among sovereignties they were constituted differently. Each state sent delegates to the convention, and they voted at the meeting as states with each state getting one vote regardless of the number of delegates.  In this way, Rhode Island with its 1 million citizens remains an equal to California with its 39 million citizens.  This equality of sovereign states is the very cornerstone of our Republic.”

 “From this starting point, it is abundantly clear that the Delegates to the ConProAm are agents of the state legislatures. As such, under well-established agency principles, they are subject to the instruction of the state legislatures. Each state legislature has the power to determine how their respective delegates are selected.”

 “Thank you Mr. Sibley.  Finally gentlemen, I would like to hear any thoughts you have on the operation of the ConProAm.  Mr. Pittard”, said Judge Garland turning to Mr. Pittard.

 Rising from his seat, Mr. Pittard stated: “Judge, again, you have made it clear that Congress may not interfere with the process of the ConProAm, so we have nothing to add.”  Again, Mr. Pittard sat down but this time proceeding to lift his briefcase onto his counsel table, opened it and started putting his notes into the briefcase.

 “Well, Mr. Pittard and Congress seem to have given up the ghost.  However, Mr. Sibley, anything you would like to add?”

 “Once again, thank you your Honor.  Just a few quick observations based upon the historical precedent I extensively have footnoted in my legal brief.  First, a state could instruct its delegates to not agree to any amendment that did not include particular language.  This again enforces the superior rule each state legislature has over it delegates.  Second, each state should pay its own delegates to avoid any confusion over that point.  This again was the common practice in the 18th Century.”

 “Third, the operation of the Convention is solely within the purview of the delegates, a matter they will take up upon convening.  Fourth, the ConProAm may opt to propose one or more amendments on any subject or may adjourn without proposing anything. Most importantly, the historical precedents are overwhelming and without contradiction that each proposal requires only a majority vote of the states to be officially ‘proposed’.  Fifth, once proposed, the proposed amendment should be officially transmitted to Congress. After the transmission of the proposed amendments, the ConProAm’s duty is done, and it must adjourn sine die.”

 “Last, as the Court knows, Congress has one small final role to play at this point. Article V requires Congress to choose the method of state ratification. Article V states in pertinent part: a proposed amendment ‘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.’  My only point here is that this Court should retain jurisdiction to insure that Congress expeditiously makes its choice as required by Article V on the manner of ratification.”

 “Thank you Mr. Sibley.  Let me commend you on your fine legal research in support of your arguments which, by and large, I find persuasive.  We will take a break for lunch to allow me to consider what I have heard this morning.  Court will reconvene at 2 p.m. and at that time I will be issuing my order in this matter.”

With that, Judge Garland rose and exited the Courtroom.


 At 2 p.m. promptly, Judge Garland strode into the Courtroom and took his seat on the bench.  “Please, everyone be seated” the Judge said.  “This will not take too long as I have finished drafting my order in Sibley v. McConnell and Ryan.  When I am finished, I have directed the Clerk to make copies available in her office and of course, the Order will be online for downloading.  Let me now begin.”

 “Upon the briefs submitted and the oral arguments the Court heard this morning, it is Ordered and Adjudged as follows:

First, a convention to propose amendments to the Constitution of the United States -- hereinafter ConProAm -- as envisioned by Article V of that Constitution is hereby called to convene in Washington, District of Columbia, on or before October 14, 2017.

Each state legislature shall determine and bear the costs of its delegates to the ConProAm.  Regardless of the size of a state’s delegation, each of the fifty states shall be accorded one vote on each of the proposed amendments.   To be clear, neither the District of Columbia nor any of the territories of the United States shall have any voting delegates at the ConProAm.

Pending adoption of a different set of procedural rules, the ConProAm shall utilize Robert's Rules of Order to conduct its affairs.  Each state delegation shall appoint one delegate to speak for the delegation during the convention.  Any challenges to a state delegation members or activities shall be resolved solely by that state’s judicial system.

I am appointing this day as Chair pro tempore of the ConProAm Mr. Montgomery Blair Sibley who shall be charged with organizing the ConProAm and calling its first meeting to order.  The first business that the ConProAm will take up will be the election of a permanent chair.  I note that my appointment is based upon the role Mr. Sibley has played in bringing this issue to the point it has reached today, that he is a resident of the District of Columbia and thus has no state-specific bias a chair from one of the several states might appear to have and, most importantly, is as well versed on the history of these conventions as anyone.  Mr. Sibley may submit invoices for organizing the ConProAm to be paid by the Clerk.

Last, I am reserving jurisdiction of the ConProAm to address any issues that may arise.”

“Done and order this day in Washington, D.C.”

With that, Judge Garland rose and left the Courtroom which now was filled with a flurry of activities as reporters rushed out to get a copy of Judge Garland’s order and file their reports.  A number of reporters rushed the rail in an attempt to speak with Blair, but the U.S. Marshals had already blocked that path.

Rachel approached Blair as he sat.  “Blair, would you like to use the judges’ exit to avoid the press?” Rachel asked.

“That would be great. Besides, I wanted to chat with you a bit anyway.  Any place private we can go?”

“Yes counselor Sibley, please follows me”.  With that Rachel led Blair out of the Courtroom towards the Judge’s chambers, down a hall to a stairway.  One flight down she led Blair into a vacant jury deliberation room.

“Rachel, do you recall the questions I asked you the last time we were alone?” Blair said.

“Of course, this is why I have led you into this private room.”  Rachel said, putting her papers on the table and taking a seat.  “Sit for a moment; I have a few things I want to say to you.”  Blair sat down across the conference table.

Rachel continued, “As to the first question you asked, yes, I would like to be your deputy Chair for the ConProAm.  My time with Judge Garland was coming to an end anyway and this would be a good career move.”

Blair beamed, “Rachel, I am so pleased.  This is going to be a roller-coaster ride and I look forward to having you, now well-schooled in convention history and law from reading all the briefs, working with me on this.  However, there is no guarantee that I will survive as Chair of the ConProAm after the convention is convened as the delegates may vote for someone else.  Are you willing to take that risk?”

Rachel smiled, “Yes, I understand that risk and am willing to take it as it is time for me to move on.  And after clerking for Judge Garland, I can get a legal job anywhere.  So the risk is really small in reality.”

“Great.  I will get Judge Garland to approve your salary at the same rate you are getting paid now.  However, we also need to define the parameters of this working relationship so we are not later upset by failed expectations.”

Rachel smiled, folded her hands before her on the table and leaned in towards Blair.  “Yes, well as to your second question about an intimate relationship between us, I will keep you to your promise to allow me to take the initiative.  As we are going to be working together closely and the time until the ConProAm adjourns is probably less than six months, I will not be taking the initiative any time before then.  Do I make myself clear?”

Blair smiled back at her.  “Yes, Rachel.  ‘Yes’ means ‘yes’ and ‘No’ means ‘no’.  I got it and am glad we have cleared the air in that regard.  So let’s move on to business.  I want this professional relationship to be one where you act as my counsel on all things, legal and otherwise.  So here is the first question.  I need to let the Press know something, so I propose to tell them that you have accepted my offer to act as Deputy, that we will be meeting the remainder of this week to get organized and will hold a Press Conference next Monday to explain the process we have adopted and answer any questions we can.   Your thoughts?”

 “That sounds good” said Rachel. “I will go upstairs now and let the Press Corp know you will be making that statement on the steps of the Courthouse in a few minutes.  Then I will come and get you.”

Rachel got up and left leaving Blair alone with his thoughts which primarily focused on Rachel.  “Why are men such prisoners to their biological appetites?”, Blair wondered.  “Truly, all men would behave like Harvey Weinstein; that is pigs, if social mores didn’t dictate otherwise.  It was cliché to characterize men as ‘cavemen’ dragging women back to their caves but there was some truth in that image.”

"Yet, the tide was turning in a fundamental way.” Blair continued to muse. “6% of the 72 million women in the U.S. workforce are earning over $100,000 per year. That is over 4 million women. Of those 4 million women, 1% or 40,000 of them are making over $400,000/year and about 4,000 of them are making over $1,000,000/year. In the U.S., women surpass men achieving more than 63% of the Masters degrees, 53% of the Doctorate degrees and now hold 52% of all managerial and professional jobs. And those trends are accelerating at a rapid rate. In 1966, 40% of American women who received a BA specialized in education; only 2% specialized in business and management. In 2015, those figures now are 12% and 50%. The only areas still left largely to men are engineering and computer sciences, in which 85% of graduates are males.  The future seems to belong to women who no longer will tolerate the boorish behavior of men.”

Blair’s reverie was interrupted by Rachel opening the door.  “Ready?”

“Yes, let’s do this.  I think this may well be the end of the Age of Pisces and the start of the Age of Aquarius.”

Rachel looked quizzically at Blair. “What are you talking about?”

Blair smiled, “I will explain later.  Let’s get this Press Statement done.  I want to take a break this afternoon and we can meet tomorrow morning.  Any ideas where?”

Rachel thought for a moment.  “You know the Supreme Court library is very quiet and has some meeting space.  No one can find us there as it is limited to Supreme Court Bar members only.  Tomorrow at 10 a.m. boss?”  Rachel smiled.

“Perfect, and perfectly ironic.  It is a date . . . in the professional sense.  Bring a list of items to discuss and so will I.”


 “Thank you for waiting for me.” Blair said standing on the steps of the Courthouse before a phalanx of reporters.  As I think all would agree, this is a significant moment in the experiment in Democracy that is our United States.  I am pleased to announce that Rachel Hera has agreed to leave her position as Judge Garland’s law clerk and act as Deputy Chair for the ConProAm. We will be gathering our thoughts on how to discharge these weighty positions before we make any further comments.  That said, we will have a full press conference taking your questions next week.  Until then, may your behaviors be governed by the seriousness of the charge that our Constitutional Framers left with us when they allowed for a ConProAm.  Until next week.”


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