of the U.S. Constitution states, "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." Since the Constitution does not mention direct democracy, it appears that it is
constitutional that the People
may have the right now to use direct democracy, and for the 49 States that authorize
initiatives in their State Constitutions
may have the explicit
section 4 of the
Constitution (the Guaranty or Guarantee Clause) states: "The
United States shall guarantee to every state in this Union a republican form of
government". If this can, even by convoluted and questionable argument, be
interpreted to mean that a republican form of government denies any right of any
direct democracy, then:
- Un-resolvable and unending argument could derail this planned Amendment.
the 49 states that have authorized the use of referendums and/or initiatives
may have violated the U.S. Constitution.
There has been
continuous argument about what the Founding Fathers intended by the wording of
the Guarantee clause—the literature is voluminous. On one extreme, some people argue that the word republic should
exclude any form of direct democracy, in effect saying that the U.S. is a
republic and is not a democracy. At the other extreme, some people argue that
Constitution gives the States a simple reassurance that there would be no new
monarchy in whatever form. The context appears to support this interpretation by focusing on safety issues—i.e., it refers
protection against invasion and domestic violence. At that time, monarchy still had wide
and was a serious and feared possibility. George Washington himself
squelched the movement to crown him by refusing to participate.
Precedence for use of initiatives in the U.S. dates
from 1898, when South Dakota became the first state to incorporate them into its
constitution. Since then, all of the States have incorporated
into their constitutions
some degree of direct democracy vote on statutes
or constitutional issues, though Delaware
is unique in that its Legislature may make constitutional changes without
ratification by the electorate. Twenty-four States use various types
of initiatives, and of these fourteen States use direct initiatives.
In 1912, PST&T v. Oregon
challenged the constitutionality of the State use of initiatives
and referendums. The Supreme Court dismissed for want of jurisdiction, in effect leaving
the States to make their own initiatives and referendums decisions.
If the Supreme
Court had found definitively in favor of Oregon it would have settled the
matter finally, but, since it did not, there is still some room for
Today, republics around the world allow various degrees of direct legislation. They all
consider themselves republics in which the citizens entitled to vote hold supreme power. There seems to be agreement that a degree of direct
legislation is entirely compatible with, and healthy for, a republican form of
This planned nationwide Initiatives Amendment would undoubtedly raise this
argument again. Since the argument probably has no conclusion, it is
appropriate to resolve it finally. In the Planned Amendment, an article
is included to clarify
that both State and U.S. initiatives are consistent with a republican form of
government. The States are the beneficiaries of the Guarantee, so they will, by
ratifying this Amendment, have concurred and accepted this constitutional
Amendment I grants the right to petition the Government for a redress of grievances: "Congress shall make no law …
abridging … the right of the people … to petition the Government for a redress
of grievances". However, the Supreme Court has
explained: "nothing in the First Amendment or in this Court’s case law
interpreting it suggests that the rights to ... petition require government
policymakers to listen or respond to individuals’ communications on public
issues." Moreover, though a signature "petition" may be used to qualify an
Initiative, the word "petition" is used as a noun, whereas it has a different
meaning as a verb in to "petition" for redress of grievances.
People's right to pass Initiatives
into law is a very different issue. In other words, Amendment I says nothing
about the People's right to use Initiatives.
In 1912, the Supreme Court held
that a challenge to the constitutionality of a State initiative was
not subject to judicial review and dismissed
the case for want of jurisdiction. In other words, the Constitution could not
resolve the constitutionality of State initiatives and the issue was left in limbo. Nevertheless, this decision has allowed
the use of State initiatives without further serious challenge. "Generally, it
is recognized that a state government is republican if Congress seats its
(Vile, p109). Consequently, direct democracy
legislation has, by its adoption in State constitutions become virtually accepted de facto as part of the Constitution.
However, neither the Constitution nor the Supreme Court have accepted or rejected
initiatives or signature petitions, so the issue can be resurrected.
Thus, there is nothing in law that says initiatives, or the signature petitions
that propose them, are or are not legal in the
United States. A Constitutional Amendment is the only way to
untie this knot.
The States on behalf of the People processes this
In general, their concern should be to get it through as easily as possible rather
than attempt to resolve or make new constitutional ground. The following
discussion addresses these
method procedural issues from this perspective.
Use of the Second method is not new. To date there have been
over 400(Durbin p11) state
applications requesting an Article V Convention according to congressional
records—though FOAVC documented and counted
Congressional records indicate that none reached the point
where two-thirds of the States acted together—though FOAVC claim the two-thirds
majority has been reached on
four separate occasions. In four cases, Congress
pre-empted what appeared to be a successful effort by proposing an Amendment
before the States could gather the two-thirds required. In other cases the
States failed by only one or two States
(Durbin p11-12). Consequently,
practice has not yet confirmed the
Second Method's procedures.
The Second Method procedures were reviewed in
"Amending the U.S. Constitution: by Congress or by Constitutional Convention,
Congressional Research Service—Report
for Congress" by Thomas M.
Durbin, May 10, 1995.
The CRS report uses the term
"Constitutional Convention" whereas this Plan uses the term "Article V
Convention" or the abbreviation "Convention"—the
Glossary explains the difference.
The report concludes that the Constitution is silent
in five areas. The report mentions a sixth area that should follow
Congressional procedures. In addition, successful use of the Second Method
requires consideration of seventh and eighth areas. If the Amendment ventures too far into these areas, they may need resolution
by the Supreme Court. The eight areas are:
Identicalness of the State
According to the
Congressional Research Service, "one of the problems...is whether the
petitions or applications must be same and, if not, how similar or closely
worded must they be in order to be valid and countable by Congress for the
purpose of calling such a convention. Article V of the United States
Constitution is silent about the subject matter...and about whether they
should be identical or at least relate to a single specific subject matter
in order to be counted."
(Durbin p14) "Certain bills introduced in
recent Congresses...would require that Congress consider the calling of a
constitutional convention upon the receipt of applications from two-thirds
or more of the states with respect to the “same subject” or the “same
To avoid a detour into constitutional meaning
and comply with congressional counting requirements,
coordinate in advance
on the wording for the applications. Though Congress wants the
applications to address the same subject, it has failed to define how this
may be accomplished. Either the extent of coordination should fall short of
a State Agreement or the States should seek the consent of Congress.
Otherwise, the Congress might find that it has sufficient grounds to deny
the States' applications because the States have violated the Constitution
Agreement or Compact with
another State without the consent of Congress under
Article 1 Section 10 Clause 3.
The safest approach will
probably be for the first two or three states that support the Amendment to
request congressional consent to a same-subject coordination process. The
request should specify a time limit on the response. In the meantime, other
States should proceed while avoiding any State Agreements or Compacts.
Limitations of the Article V Convention
"The delegates to the
Constitutional Convention of 1787 set a precedent for an unlimited or
general convention when they went beyond their mandate which was limited to
proposing amendments to the Articles of Confederation and wrote a whole new
constitution for governing the Country." (Durbin p15) However, "the constitutional convention procedures
bills...in recent Congresses accept the concept of a limited constitutional
convention since certain provisions require: (1) that a state specify in its
application the nature of amendments that the convention may propose, (2)
that the convention be limited to the subject matter specified in the
applications, (3) that the delegates take an oath that they will not propose
amendments outside the scope of the subject matter of the petitions, and (4)
that Congress may disapprove and refuse to submit to the states for
ratification any proposed amendments that are different in nature from the
petitions from the state legislatures and concurrent resolutions calling the
convention." (Durbin p17)
Congress claims to fear a
Constitutional Convention where, in theory, the
Convention could propose ill-advised Amendments. Therefore,
should avoid this issue by committing the Convention to
consider only the single
question of the Citizens' Initiatives Amendment. It is not that a "runaway"
Convention is even remotely likely, but rather that any appearance of
encouraging a "runaway" Convention would provide ammunition to those wanting
to prevent the Convention.
fact, the delegates to an Article V Convention will be acting
under the federal function doctrine.
As such, any State or Federal constraint cannot legally bind them, since they serve the Constitution, which transcends all
governments. However, an oath must
bind the delegates
morally and ethically to follow their State's wishes. Moreover, the
delegates know that three-fourths of the States must ratify any proposed
Amendment, so ignoring their oaths
cannot result in a change to the Constitution. An
Article V Convention is a very sober and serious business, which with their State
promises, should be more than sufficient to constrain a sufficient number of them to
prevent any risk of a "runaway" convention. The risk of a runaway
limited Article V Convention appears less than the risk of a runaway
Congress, which have equal Constitutional authority to propose Amendments.
Any Rescission of Petitions by State legislatures
"The language of Article V
gives little guidance whether a state could withdraw or rescind its
application or petition for a constitutional convention once it has been
passed by its legislature and submitted to Congress. There have been three
rescissions of the applications for the calling of constitutional convention
to propose a balanced budget amendment. Whether these rescissions are valid
or not, it apparently is up to Congress to determine, and Congress has been
reluctant to enact legislation clarifying the rescission issue." (Durbin p17)
However, their validity was moot because the
States never reached the necessary two-thirds majority and Congress did not have to rule on the matter.
"...in Coleman v Miller the
[Supreme] Court considered whether state could withdraw or rescind its prior
rejection of a proposed amendment to the Constitution and held that the
matter was a political question over which Congress had the ultimate
authority to decide. Certain legislation in recent Congresses...would allow
states to rescind their ratifications of a proposed amendment of a
constitutional convention by the same process by which they ratified the
proposed amendment up and until the time when valid ratifications by
three-fourths of the states would occur." (Durbin p18)
Therefore, to avoid this issue,
States should bind themselves not to rescind any application. Moreover, despite
binding itself, it would still be possible for a single state to confuse the
entire convention process by enacting a bill to rescind. Therefore, it will
also be wise for more than 34 States to submit applications.
Contemporaneousness of the
"The Supreme Court
in Dillon v. Gloss
found that Congress had the power to set a time limit on a
ratification of a constitutional amendment..." (Durbin p20) "The contemporaneous support
arguments regarding applications from the states for a constitutional
convention are based on the holdings of the Dillon and Coleman decisions
which provided that Congress has the power to set time limits for
ratification of a proposed amendment. It would seem logical to apply these
same contemporaneous support arguments to state applications for
constitutional conventions." (Durbin p20)
However, "...many states submit applications to Congress for a constitutional convention
to prod Congress into taking action...[consequently]...it may not be realistic to bind the states to their applications
before the requisite number is reached." (Durbin p19)
Moreover, "...applications from the states for a constitutional convention
are also supposed to be contemporaneous..." (Durbin p19)
procedures legislation [proposed] in past Congresses provide that
applications for a
constitutional convention are to remain effective for a period of seven
calendar years after they are received by Congress. The seven-year
limitation proposal for applications was apparently adopted from the
seven-year ratification limitation for proposed constitutional amendments
initiated in the 1920’s which has been the practice ever since." (Durbin p21)
Therefore, the States
should commit to a reasonable time during which the States will submit their
applications. The applications need to be reasonably contemporaneous or
Congress may have justification to invoke
laches and not call the convention. In ratifying an amendment, all the
states have a single well-defined issue to vote on. For this, Congress
allows seven years.
However, when applying for a
convention on a "same
subject" or "same general subject", each state will create a slightly
different application to Congress. This process will require considerable
ingenuity and is far more complex than an "up or down" vote on the final
amendment. Therefore, considerably more time should be allotted than
for ratification. However, the time delay of 203
years that occurred in ratifying the 27th Amendment is unreasonable. A time of 21 years is somewhat arbitrary but entirely
reasonable. It will allow the states to thoroughly evaluate their options.
In the present case of this Plan, it allows enough time for one or more
States to replace their signature petition qualification of state
initiatives with a state boule and evaluate what they
learn to apply it in the Convention.
However, because the risk of a newly elected State legislature
deciding to try to rescind an application (despite prior commitments not to
rescind) is always present, it will be wise for the States to submit all
applications within as short a period as possible.
Enactment and Submission of the Petitions by the State
"In states with bicameral legislatures, it would seem that an application
from a state for a constitutional convention would have to be approved by
both houses of the legislature...and
require the presiding officer of each
house of the state legislature to sign the exact text of the resolution..."
In the past, only one of the two State houses approved some applications, which called into question the validity of the submission.
"The constitutional convention procedure bills in recent Congresses...[avoid
procedural problems by]...(1) requiring a state to address two copies of the
application calling for a constitutional convention to the President of the
Senate and the Speaker of the House of Representatives; (2) requiring
applications to be sent within thirty days after the adoption by the
legislature of the resolution; and (3) requiring that the copies bear the
date on which the legislature adapted the resolution and be certified by the
Secretary of State or some other official..." (Durbin p23)
Therefore, all the States should
coordinate so that applications will require approval
of both their houses (except Nebraska, which has only one house) to avoid
Article V Conventions Procedures Bills in Recent
The States should conform to the constitutional
conventions procedures bills in recent Congresses. E.g.:
Send two copies of the application to the President of the Senate and
the Speaker of the House of Representatives.
Send the applications within thirty days of their adoption by the
Certify the adoption and date adopted by the legislature’s Secretary of
State or equivalent office.
In addition, the
States should designate their own recipient to whom a copy of all
state application documents should be lodged and time-stamped for
independent record keeping.
is Needed for Congress to Call a Convention
The Constitution is silent on the timing of the Amendment processes. For example,
Congress proposed the 27th Amendment in 1789 without a ratification time
limit. The States took their time, and ratified it
years later in 1992. To prevent such unreasonable delay, Congress took the prerogative of setting a time limit, usually seven years,
for the States to ratify an Amendment.
Moreover, there must be a
limit on extended congressional
procrastination. Following the State
precedent established by Congress, the States should take the prerogative of
defining in their application an appropriate time limit by which Congress
shall call the Convention. At the Annapolis Convention, the States adopted a
resolution on September
14, 1786 applying for a Convention and Congress called
the Convention on February 21, 1787—a
time interval of under six months. Following this precedent, and recognizing
the instant communications and fast travel available today,
a period of one year after Congress
has received the requisite number of State applications would seem more than adequate for a
good-faith call. If Congress provokes a constitutional crisis
by failing its constitutional obligation to call the Convention, the problem
can still be resolved in various ways. For example:
The States may ask the Supreme Court to find Congress in violation of the Constitution and the Court
may issue a Court Order or to issue a writ of mandamus
requiring congresspersons to call the Convention.
The States or Congress
may ask the Supreme Court to grant Congress a delay, but require
congressional action within a new time certain.
Presumably, sane heads will
prevail to avoid such confrontation, perhaps by a "prodded" Congress reverting to the First
Method or by compromising in advance on the timing and other issues.
congressional procrastination would be dangerous and the States should not
Congressional Opportunity to
Undermine the Applications
The States should presume that Congress will oppose the applications
vigorously and will wish to undermine them. In anticipation of this, the applications should
refer to the similarity of the States' applications and declare
that any significant changes to the meaning will not be acceptable to the States.
be obdurate. This possibility can be inferred from
(e.g., Committee on the Judiciary, H.J. RES. 84, March 25, 1998) on the
Second Method, which show many believe
Congress should propose an Amendment giving it a congressional veto
of the States'
applications by a
of each House. Others in Congress appear to believe that, under the "necessary
and proper or basket clause", they already have a veto power by a majority vote in
However, it is
that Congress "shall call a Convention" without any option,
a view that Federalist 85
validates. A congressional failure to call a convention following a request
by two-thirds of the States would be a violation of the Constitution no
matter how Congress may wish to interpret its procedures. If Congress wishes
to control the States' constitutional rights, the proper method would be by
Constitutional Amendment not the "necessary and proper clause".
In fact, the Constitution says nothing about congressional approval of a State
application. Madison proclaimed that "The
Constitution moreover equally enables the general and the state governments
to originate the amendment…" While
a congressional veto power may or may not be a good idea,
it is not part of the Constitution at this time.
People have approved referendums in a large number of the States,
the desire of the People will be unquestionable. The People
ordained and established this Constitution and
have the supreme right to alter government.
This unity of the States and the
People will create great constitutional authority in any dispute with Congress.
States should advise Congress that, if
Congress changes the wording or vetoes their application, they would
petition the Supreme Court
to issue a writ of mandamus
and to hold
Congress and its members in contempt. Presumably, as
in item seven above, sane heads will prevail to avoid such confrontation.
Congress has always chosen ratification by the
legislatures except for the 21st Amendment (repeal of prohibition)
for which Congress chose ratification by convention explicitly in the Amendment
text. However, this single case
is sufficient to establish precedents that should suffice in the event that
Congress proposes ratification by convention for the planned Amendment.
A state convention differs from the state legislature
in that it is usually an entirely separate body from the
legislature. This introduces a different political dynamic into the
amendment process. The reason for choosing ratification by
convention in the 21st Amendment is that the people of the conventions, which would
typically be average
citizens, would be less likely to bow to political pressure to
reject the amendment than elected officials would be. If Congress
were to preempt an Article V Convention and sincerely wished for ratification of
Amendment, then it may again choose ratification by convention.
According to the Congressional Research Service, 1995 (Durbin)
"...the Supreme Court decision of
Leser v. Garnett ..." found that “…the function
of a state legislature in ratifying a proposed amendment to the Federal
Constitution, like the function of Congress in proposing the amendment, is a
federal function derived from the Federal Constitution; and it transcends any
limitations sought to be imposed by the people of a State.” And, when a state
legislature decides to ratify a constitutional amendment, that decision, under
the federal function doctrine, would transcend any limitations that the people
of the state would seek to impose."
Presumably, if Congress proposing an Amendment is a federal function, then an
Article V Convention proposing an Amendment is also a federal function.
Thus, a State direct initiative passing a State statute or State Constitutional
Amendment supporting this Planned U.S. Constitutional Amendment could require the State
Legislature to take all necessary actions related to the application to
Congress for an Article V Convention until Congress calls a Convention. However, (U.S. Supreme Court
"Hawke V. Smith" 1920) a State referendum (and presumably also an initiative)
could probably not require a State Legislature to propose or ratify the U.S. Constitutional
Amendment, because the State Legislature would be fulfilling a Federal Function
transcending a State Initiative. In other words, based on these Supreme Court
rulings, those State persons attending
the Article V Convention to propose the Amendment, and those voting to
ratify the Amendment, must act as a
federal function and it appears that they are not legally bound to follow the
intent of a State initiative. On the other hand, they would presumably
morally and ethically bound to follow the State initiative.
Again, per the Congressional Research Service, 1995 (Durbin):
Since the “Leser” decision, the so-called “federal function doctrine” has been
used to justify any role that Congress had and would have under some form of the
proposed Article V Convention procedures legislation. Under this doctrine,
Congress would have those functions which are not specifically assigned to the
States under Article V…the Supremacy Clause of Article VI would determine that
federal legislation provisions would supersede inconsistent state acts. While
the States, the courts and the convention itself would appear to be unable to
regulate the application and convention process, Congress, it would seem, would
be the appropriate governmental branch to specify the procedures of an Article V
Convention that were left unresolved by Article V.
Though Congress has for over 200 years failed to specify the procedures of an
Article V Convention that were left unresolved by Article V, it may enact
something at the last moment and cause enough difficulties for the States that
the issue will end up in the Supreme Court. Even worse, the Court may decide the
issue to be beyond the Court's jurisdiction—as it did regarding the legality of
State initiatives. This might well
provoke a constitutional crisis that all parties will want to
avoid—Congressional tardiness will be a meaty subject for the media. Those
representatives responsible for the mess would suffer the People's wrath at the
next election when the People could elect the new representatives to resolve the
However, none of these issues can do more than slow the ratification of the
planned Amendment; ultimately, they cannot prevent it.
The Planned Amendment takes the position that the Congressional voting majorities already in
the Constitution are adequate to the task. Any detour from this would create
In effect, the Electorate’s vote on a Direct Initiative will
if the voters are emulating elections for each seat in the House of Representatives and
the Senate, where each seat is obligated to vote
on the ballot Initiative in exactly the way that the People wish. In addition, as a
precaution against statistical anomalies that sometimes happen
in voting, it is also required that all Direct Initiatives have a nationwide
majority. Thus, the following
requirements to replicate Congressional voting are
in the Planned Amendment:
In Both Cases
All Direct Initiatives shall require a nationwide majority
Normal Direct Initiative
This corresponds with a normal majority vote passed in both Houses of
Congress. It requires a concurrent majority vote by the Electorate:
in a majority of the Congressional districts, and
in a majority of the States
Issue Direct Initiative
This corresponds with a two-thirds supermajority vote passed in both Houses
of Congress. It requires a concurrent majority vote by the Electorate:
in a two-thirds supermajority of the
Congressional districts, and
in a two-thirds supermajority of the States
The state votes clearly protect state rights. The Congressional district votes
should help to protect minority and local rights. Unfortunately, in some of the districts, gerrymandering
has made the voting effects on minority rights unclear.
In almost all states, a
of voters elects a congressperson. If more than two candidates are running, the winner can
win with less
than a majority of the votes cast. However, the basis of the "emulation" is a
of the votes cast, which in an election is always sufficient no matter how many or few candidates are running.
Moreover, though Congress passes legislation based on a simple majority, the
"emulation" of all seats creates the somewhat higher standard of an
absolute majority—i.e., no absent
or abstaining members.
This requirement of a concurrent majority vote is similar to that used for
initiatives in Switzerland. There, an initiative needs a
to pass—i.e., a majority of the people as a whole and in a majority
of the cantons.
The question of what to call an initiative is not trivial.
The name most often identified with a nationwide initiative is "National".
other countries, use of the word national is automatic because they have had
centralized government for a long time.
However, U.S. Constitution mentions neither "National" nor
"Federal". Those concerned with State power tend to favor "Federal", while
those concerned with centralized power tend to favor "National".
James Madison declared that "The proposed Constitution is, in strictness,
neither a national nor a federal constitution; but a composition of both." The
issue of State vs. National powers helped ignite the civil war. Even today, the injudicious use of the words can lead to heated debate.
This planned constitutional Amendment remains clear of any
"National" vs. "Federal" issues by using the name "United States", which is widely used in the
Constitution. To make it clear that a vote is of the entire country, this site
lower-case adjective "nationwide" where appropriate.
The Plan could use the term Voter Assembly since
all Members of the Assembly are eligible to
vote. On the other hand, all Members
are Citizens, so the term Citizens' Assembly is also appropriate. Both
titles are reasonably good, but neither is precise:
In fact, about 22 percent of those eligible to vote have not
registered to vote, but can become Members. In other words, the term Voters
Assembly is a superset of the actual voters.
In this case, about 28 percent of U.S. Citizens are ineligible to vote or
become Members because they
are under 18 years of age. In other words, the Citizens' Assembly is a
subset of the actual Citizens.
Internet searches for "Voter Assembly" reveal that
a great variety of organizations, including many religious groups, use this
term. On the other hand, a search for "Citizens' Assembly" shows many political
groups. Thus, it seems that the Citizens' Assembly title will be more effective
at helping the public find the information they want in today's Internet age.
Moreover, the title "Citizens' Assembly" has a constitutional ring to it.
However, there are many different types of Citizens' Assemblies. For clarity, a
full title such as "U.S. Citizens' Initiatives Assembly" is necessary but leads
to excessive verbiage. Also, the acronym "USCIA" refers to the United States
Central Intelligence Agency.
Our word democracy comes from the Greek words dēmos
"people" and kratos "rule". Following that tradition, the
Greek word Boule,
"the will after deliberation", is borrowed from the
Greek and normally used here in place of "U.S. Citizens' Initiatives Assembly"
because it is brief, easy to remember, and it cannot be confused with other
types of citizens' assemblies.
All three-letter and four-letter acronyms are
already registered and are no longer available as Internet domain names. The name
"Boule of the United States" has the
convenient acronym BOTUS. It is compatible other federal government acronyms,
which are used internationally though probably less in the U.S.:
BOTUS – Boule of the United States
Constitution of the United States
House of Representatives of the United States
POTUS – President of the United States
Senate of the United States
SCOTUS – Supreme Court of the United States
http://www.BOLUS.org has been registered and is in use along
http://www.CUSDI.org. Today, they all
point to the same web site but may be separated later if appropriate for
organizational clarity and convenience.