Lifted from late nineteenth opinion of Justice Brewer (Gulf, C&S. F. R. Co. v. Ellis, 165 U.S. 150 [1897]):
"The argument used by Anti-Conventionists is that Article V fails to provide operational details of a convention and because of that vagueness one should not take place despite the fact the states have legally satisfied the requirement for it. These opponents ignore that Article V is part of the Constitution, and as with all such questions, the entire Constitution is applied-- every clause bears on the others and thus where details are found. This is especially true of the 14th Amendment, which in part states:
"'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'
"This explains why a convention must be comprised of elected delegates, why a convention vote is conducted by state delegations rather than individual delegates, why a convention can only propose amendments based on a two-thirds vote of state delegations, and many others, all protecting the people equally regardless whether a proposal originates from the Congress or the Article V Convention.
"The Supreme Court has ruled members of a legal class must be treated equally under the law. The Court has ruled discrimination must rest on some difference bearing a reasonable and just relation and cannot be made arbitrarily without basis. There must be a basis for discrimination or it's unconstitutional. In the case of a convention, the basis to classify it as a separate from Congress would mean to treat them differently under the law, but there is no basis to do so because the function of a convention and Congress is identical-- to propose amendments. The Constitution authorizes no other political body to make proposals, only a member of Congress or an Article V Delegate holds power to do so. Any law which applies to one portion of a legal class must apply equally to both. This explains why a convention can only propose amendments based on two-thirds vote of delegations because Article V mandates Congress must do so.
Delegates
"The principle of equal protection extends to all aspects of the amendment process. If members of Congress suffer election to obtain power of proposal, so too must convention delegates. Indeed it would be impossible to assert otherwise as all groups associated with the amendment process (including state legislators and state ratifying delegates) consist entirely of elected members. Similarly, attempting to instruct delegates on what to consider, what to propose, and how to vote, is unconstitutional because it denies delegates equal power granted to members of Congress, not to mention protecting the people from a bogus convention.
"Election law that regulates members of Congress applies equally to delegates. The lowest standard of election for members of the House is having attained the age of twenty-five, citizenship for at least seven years, and residing in state where elected. This constitutional standard becomes the election qualification for an Article V Delegate.
State Delegations
"House members are elected from congressional districts which are apportioned in state based on population, and as those populations vary, so too do the number of its congressional districts. Consequently delegates must be elected from those same districts in order to protect the people in being equally represented. The number of delegates from each state must be equal to the number of congressional districts in the state.
"Each state is equal in the convention process: each is permitted one application for a convention and one vote in ratification-- a single state cannot cast 34 applications to cause a convention and a state cannot vote 38 times on an amendment to have it ratified. In the amendment process each state has one vote regardless of population, thus making them equal. This was the major concern of delegates to the 1787 convention which gave us the Constitution itself; they wrestled over the question of equal representation in the face of varied populations. They resolved the problem by creating two houses of representation-- one based on state representation (the Senate) and the other on state population (the House). However, Article V mandates a convention be unicameral rather than bi-cameral-- which simplifies and strengthens the effect of the process because a single political body is less political and more reliable than two political bodies.
"In order that the population in each state is represented equally, delegates from each state are gathered into delegations. In this way populations are equally represented within state delegations where the delegation becomes an artificial person with one vote; each delegation votes on proposals within itself and casts that decision as its state vote; 50 votes for each proposal, requiring two-thirds to legally propose an amendment (the convention of 1787 and the Congress prior to enactment of the Constitution both used state delegations as basis of one vote).
Quorum
"The operational question of quorum of a convention is again resolved by applying the 14th Amendment. In Congress the Constitution demands a quorum for either the Senate or the House to conduct business-- a majority of members-- fifty percent, plus one. Thus in Congress a quorum of members may vote to propose an amendment without two thirds of the full membership present. And so it is in a convention, a quorum of states (26) having a quorum of delegates may propose an amendment without all delegations present and conduct business as required.
"In Missouri Pacific Ry. Co v State of Kansas, 258 U.S. 276 (1919), the Supreme Court ruled on the issue of quorum in relation to the amendment process of Article V. The Court quoted Speaker of the House Thomas Reed on passage of amendment providing for election of Senators in reply to an inquiry from the floor as to whether the vote was in compliance with the two-thirds rule fixed by Constitution, Reed said, 'The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says 'two-thirds of both houses.' What constitutes a house? A quorum of the membership, a majority, one-half and one more. That is all that is necessary to constitute a house to do all the business that comes before it.' [I]f a quorum of the House is present the House is constituted, and two-thirds of those voting are sufficient in order to the accomplish the object." Therefore, as with Congress, quorum of state delegations constitutes the convention which may proceed with business."
- As noted by James Iredell, in the North
- 11 Carolina Ratifying Convention of 1787:
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