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  • Don't Be Fooled by Article V Conventions

    The idea that there might be a simple fix to all our problems has seduced many thoughtful and well-intentioned men and women over the ages. If only we could do this, then all would be well.

    We stand with our persevering friends and allies.  But let’s not be fooled.  By the very nature of man and the imperfection of politics, there are no silver bullets.

    Such is the case with the proposal to hold an Article V constitutional amendments convention.  A perennial question in American history, it seems on its face to be a simple suggestion to deploy a forgotten option to bring about the changes we seek.

    In the course of our work advising state and federal lawmakers and conservative allies across the country, we have been giving this issue close attention and study.  Along with Trent England, the director of constitutional studies at the Evergreen Freedom Foundation, I’ve written our assessment of the meaning and status of Article V as part of our Constitution Guidance for Lawmakers series.  Stemming from that analysis, and taking into consideration the circumstances under which we are now operating, we have come to the conclusion that an Article V convention is not the answer to our problems.  The lack of precedent, extensive unknowns, and considerable risks of an Article V amendments convention should bring sober pause to advocates of legitimate constitutional reform contemplating this avenue.  We are not prepared to encourage state governments at this time to apply to Congress to call an amendments convention.

    This should come as no surprise. While the congressional method of proposing amendments is unambiguous—Congress, whenever two-thirds of both Houses deem it necessary, may propose specific amendments—things get murkier with an Article V convention. The vagueness of this method led Madison to oppose the proposal at the Constitutional Convention: “difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.” Combine that with the fact that no such amending convention has ever occurred, and too many serious questions are left open and unanswered.

    The requirement that amendments proposed by such a convention must be ratified by three-fourths of the states is a significant limit on the process and would likely prevent a true “runaway” convention from fundamentally altering the Constitution.  But we don’t think it is at all clear, for instance, that two-thirds of the states calling for an amendments convention can limit the power of all the states assembled in that convention to propose amendments to the Constitution. Other questions include the many practical aspects of how an amending convention would operate and whether any aspects of such a convention (including going beyond its instructions) would be subject to judicial review.

    That said, advocating an Article V convention as part of a state-based strategy to press Congress to pass a constitutional amendment is not unreasonable.  Precisely because of the potential chaos of the process, the very threat of an amendments convention will pressure Congress to act rather than risk having one proceed.  That’s what happened in the 1980s with the unsuccessful push for a balanced budget amendment (good example) but also during the progressive era with the successful push for the direct election of senators (bad example).

    Serious scholars will undoubtedly continue to debate the historical record and speculate about the possibility of an amendments convention under Article V.  But the argument that, as a matter of course, we should spend considerable time, money and effort right now to design, plan and implement a convention—despite the unknowns and risks involved—is both imprudent and potentially dangerous.  It is a distraction that inevitably gets bogged down in a debate over technical details, taking valuable attention and focus away from the substance of the constitutional reforms themselves. Claims of the ease and efficacy of an Article V convention are also misleading to the many committed and well-meaning reformers and activists who are serious about constitutional change in the United States.

    There are several very good constitutional amendment ideas circulating, and a strong consensus is beginning to coalesce around a few. We should be careful not to undermine those good efforts by tying them intrinsically to the dubious process of an Article V convention.

    There may be a time in extremis when an Article V convention is our last option to try to preserve the Constitution.   That’s how Madison at the height of the Nullification Crisis and later Lincoln in the midst of secession and the Civil War looked at it.  But just when there seems to be a national awakening to reestablish constitutional principles, American politics at the state and national level is moving in the right direction and a decisive election is on the horizon—that dark time is not now.

    Posted in First Principles [slideshow_deploy]

    11 Responses to Don't Be Fooled by Article V Conventions

    1. Lou Alfano, PA says:

      While I agree that an Article V convention could be a dangerous thing, a POSSIBLE solution would be for Congress to draft an amendment which would establish the procedural nexus for such a convention – basically establishing Article V convention RULES. Article V, by itself, leaves us in outer space, it needs an anchor.

    2. Pingback: » Don’t Be Fooled by Article V Conventions | The Foundry: Conservative Policy News. MySquawk

    3. Bill Walker, WA says:

      Dear Mr. Spalding,

      I've read with interest your "evaluation" of an Article V Convention. I also took time to read your "assessment of the meaning and status of Article V." Please allow me to make a few observations.

      First on page 2 of the "assessment" you erroneously state the Articles of Confederation "provided for amendments to be proposed by Congress…" This is factually incorrect. First, the Articles provided for "alteration" of the Articles of Confederation. Second, no specific proposal body was mentioned in the Articles. It was because of these two "weaknesses" in the Articles that Congress could assign proposal power to a convention and such convention could propose a single alteration to the Articles, now renamed the Constitution. Accuracy is important and you are inaccurate.

      You state on page 3 "the difficulties inherent in an Article V amendments convention have prevented its use, though some state applications (depending on how those applications are written and counted, an additional controversy in the Article V convention process) have come within one or two states of the requisite two thirds.

      This is incorrect. If you go to http://www.foavc.org you can read the applications in question. In all 49 states have submitted over 700 applications for a convention call. You fail to mention this critical and key fact. You'll see if you wish that on at least three different subject areas, balanced budget, repeal of federal income tax and and apportionment, the states have satisfied the two thirds requirement. Moreover, if you study the federal lawsuits found at FAQ 9.1 you'll see that the government had admitted before the Supreme Court as a matter of public record that sufficient applications exist to cause a convention call, that the call is peremptory (thus eliminating any question as to the terms) and that the call is based on a simple numeric count of applying states. Again you fail to mention this fact in your evaluation.

      As to the other questions involved that you raise, as the lawsuits demonstrate the convention must, under the terms of the equal protection clause, be treated the same as Congress. Therefore, in quick summary, all rules effecting Congress equally effect a convention as to selection or election of delegates, number of delegates and so forth. You failed to mention this in your evaluation.

      As noted, your statement on page 3 of being "one state away" from causing Congress to call is in error. The public record shows the states have long since satisfied the terms of Article V. It is refusal of Congress to obey the Constitution that is the sole reason for a convention not being call rather than false statements you make in your evaluation.

      As to your evaluation regarding court cases. You do mention them but you failed to mention that Hawke v Smith also expressed that Article V was without "interpolation, addition or rules of construction." Thus, there is no interpretation. Your assumption of subject matter as a basis for issue regarding a convention is therefore misplaced. Further it is clear you read into Article V what you want to see rather than what is actually stated. A simple example examination of a grammar of the article makes it clear the purpose of the applications by the states is for the expressed purpose of causing Congress to call the convention. As there is no interpretation permitted in Article V, any other text (including proposed amendments written by the states) therefore is constitutional dicta.

      I would suggest that you take time to review the material on the FOAVC website. At the least you should state in your article the fact a convention is currently mandated by the Constitution and that you are urging that despite this constitutional fact, we should ignore the Constitution and no obey it. No other conclusion regarding your opinion expressed is possible other than you only want to support those parts of the Constitution you agree with. This is clearly wrong.

    4. Toddy Littman, AZ says:

      There is no requirement of the People to be bound to Article V by its own terms and the history of the Amendment.

      Congress and the States are what are spoken of, nothing about the people.

      Please stop ignoring our Sovereign Power to amend the Constitution, articulated best by James Wilson, thank you:

      "Permit me to mention one great principle, the vital principle I may well call it, which diffuses animation and vigor through all the others. The principle I mean is this, that the supreme or sovereign power of the society resides in the citizens at large; and that, therefore, they always retain the right of abolishing, altering, or amending their constitution, at whatever time, and in whatever manner, they shall deem expedient. James Wilson, Founding Father, Lectures on Law: Volume 1 Chapter 1 page 17."– http://bit.ly/eJtpI0

      And please can we try to stop with this "Constitutional Rights" stuff, I have yet to see the directive language of the Constitution directed at allocating one right to the people, lots of limits and enumerated (versus general) power designations, but not once a right granted to the people.

    5. Phil Davis, Florida says:

      The closeness to a constitutional convention is certainly very close given the past events of what FDR accomplished with the SCOTUS. Over the last two years under the present Administration and the past Democratic majority in Congress, America suffered greatly. We rock back and forth since FDR opened our pocket books for more taxes to feed the socialist programs and erode our personal freedoms. A drip and drabbed at a time over time and we will forget who we are and where we started from. Therefore, at what point do we stop this brain drain before we are walking government-controlled robots or should I say, "Good little socialists/communists/fascists". Certainly food for thought!

    6. Phil Davis, Florida says:

      In reference to my previous remarks. If the hole can be closed that FDR opened through the SCOTUS, then we can avoid any amendments. Hopefully, the recent unconstitutional healthcare ruling by Federal Judge Vinson of Florida will make it quickly to the SCOTUS on appeal and we can close the hole that should never have been created by FDR. This commerce clause closing would turn around decades of decay and stop politicians getting elected over and over again from those who receive entitlements from the taxpayer. Making able bodied Americans to go to work and stop scamming the taxpayer!

    7. Bill Walker, WA says:

      To Mr. Littman,

      Only because your comment is so far off base am I even bothering to answer it. First of all, Article V is an ARTICLE of the Constitution, not an amendment. As to your absurd assumption that the people are not bound to it, I point to the supremacy clause as proof of this point which binds all to obey it who are in turn required to base their actions in regulation of the general people on its terms. In short, the people are required to obey it. If you don't believe me, why not commit a federal crime and then come to the judge and say "I'm not bound by the Constitution and therefore you have no authority over me" (which is what you are really saying) and let us know how that works out for you.

      The fact that James Wilson restated the Declaration of Independence has no bearing whatsoever. I will concede the people have a sovereign right to change their Constitution. However, in creating the Constitution the people designated a particular method or methods whereby this was to be accomplished and allowed for no other process to interfere in that process, meaning that Congress is not free to ignore the Constitution in this regard simply because it is politically uncomfortable, nor are people like yourselves free to urge the Constitution not be obeyed. Your objection may be noted, but the Constitution must be obeyed meaning your objection is meaningless—unless you want to support overthrowing it.

      Finally as to your challenge that the Constitution gives no "directive rights" or as you phrased it, "to see the directive language of the Constitution directed at allocating one right to the people…" allow me to prove you have never even read the document to one and all.

      To name but a few:

      Article IV "The Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

      Article I "No bill of attainder or ex post fact law shall be passed."

      1st Amendment: Congress shall make no law respecting …. the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

      2nd Amendment: …the right of the people to keep and bear arms shall not be infringed.

      3rd Amendment: No soldier shall in time of peace be quartered in any house, without the consent of the owner…"

      4th Amendment: (The whole thing, too long to type here.)

      5th, 6th, 7th Amendments all speak of rights of the people.

      9th Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

      13th Amendment: Right to be free and not a slave

      I could keep going such as the right of the people to have public records and accounting of their government. But I think I've made my point and made your entire comment look silly. Next time check your facts first.

    8. Karen Holmes says:

      You made several very good arguments against the use of an Article V constitutional amendment convention, and there have been several excellent rebuttals. I believe there is one overriding argument for the Article V amendment convention, and that is if Congress is mired in a crisis, on a slippery slope, and sees no solutions. They they have the power but are deadlocked, and are not listening to the people, and dragging the country deeper into the crisis.

      My organization is working to introduce a plan for world peace, a solution to this crisis, and we are calling for an Article V constitutional amendment convention.

      World peace is a movement, and the first 25% of the people to come into any movement are those who stand on the principles. The second 25% are those who are affected financially. The third are those whose lives are affected, and the final 25% are clueless, but eventually vote on the issue. With a 13% approval rating, the final segment of the people are angry and being drawn into the crisis; Congress and the rest of the country are in very deep trouble.

      Our plan is for an international government based on the U.S. Constitution. Every nation will be treated the same way the states are treated within the United States. Disputes between nations will be handled by a court system rather than the battlefield. This plan requires a constitutional amendment to create the additional layer of government over what already exists. It goes right to the root of the Constitution, and under the present circumstances, an Article V amendment convention is the only route to take. World peace must come from the people, not the governments.

    9. Brent Morehouse, CA says:

      Matt, and 'most' others, I appreciate your contribution to the subject matter. Article V is indeed the 'emergency button', it is not the 'self destruct button' though. Opponents of an Article V Convention are held to their positions out of fear. Fear of run-a-way convention, or as Phyllis Schalfy touts 'it would be the media event of the Century!', fear of the 'broken' electorate', fear of 'dark powers' that would amass to overtake the agenda of a Convention! (Seriously, that is one of the most common reasons opponents give, yep 'dark powers').

      Ask yourself this question – 'Do you trust the Federal Government, more than you trust the 34 most responsible State Governments in the Union?' 34 States are needed to call a Convention, an additional (4) to Ratify amendments.

      The argument that the electorate is broken 'not the Constitution' makes sense at first pass. However, I don't think the electorate is broken in South Dakota… Oklahoma…Texas… get my point? Do this… (seriously, do it) print a Map of the U.S. with just the State Borders – kinda like a kid's coloring page of the U.S. Now, color in the 16 most 'irresponsible' States. I'll help you get started… CA, IL, NY, MASS, HI, OR, WA, CT, DE, WV… that's only 10, pick 6 more.

      What's left is very promising – an Article V Convention is actually the ONLY way to circumvent the 'broken electorate' in the other States.

      Do this.. (seriously, do it) … of the 16 States that you colored in — now research the Congressional voting records on the latest 'Acts' or 'Legislation' which are the recent tipping points.. TARP (1,2) Obamacare, Financial Reform. I guarantee that none of these Acts would have passed in 'Congress' if these 16 States were left out of the voting. Now, narrow your list down from 16 to 12, since we need an additional 4 States to Ratify. The same results – I guarantee it!

      Think about it – Los Angeles, San Francisco, San Diego, Sacremento, Chicago, New York, Boston.. these large metropolitan areas, 'the broken electorate' are completely 'neutralized' in an Article V Convention! Even if California decides to join the party… so what!? Their vote carries the same weight as South Dakota's!

      Today's Grassroots movement will be the ones steering this agenda – keeping it on track, we don't suggest that we yell from rooftops/hilltops 'Hold a Convention!, Hold a Convention!' No, rather, we set the agenda and with good old fashioned Political Pressure 'in your face' like the Patriots of the 1770s – we hold the State Legislators on course – and at the same time continue to remove the established power structure in any State that is 'resistant' to reform.

      Yes, this will take some time and effort – of course! Anything worth doing will be hard, but think of how hard it will be to actually 'fix' the 'broken electorate' that is out there! It will literally take a catastrophe for these people to wake up, and when they do… I don't think we'll be seeing eye-to-eye on the solutions.

      Remember, the reason there is a word 'Patriot' is because of the word 'Loyalist'!

      (all caps) We Are the Ones We've Been Waiting For

    10. Brent Morehouse, CA says:

      In addition, the idea that Congress is acting Unconstitutional by not calling for a convention is what I call being 'wrapped around the axle'.

      State Legislators, over the many, many years, get a 'burr under their saddle' from time to time. They draft a resolution, get the support of their House colleagues, and then fire off a request for a AV Conv. to Congress.

      Someone, then tallies up all these misc requests, separated by issues and (all caps) decades (!) and erroneously comes the the conclusion that 2/3's of the States have called for a AV Convention.

      To be clear, and practical (real world), when 34 States announce that they (all caps) We Be Holding a Convention, that's when it will happen! Granted, I doubt that all 34 will announce on the same day – I think it will take a number of things.

      1) A significant movement by the population in 34 States – to set the agenda before hand – and to press the Legislators into the call.

      2) Without a doubt – I can see 6-12 States immediately responding to this pressure.

      3) Then the 'game is on' – pressuring the remaining 'targeted 34' to announce their calls within a year or so (hopefully).

      Remember, the States 'application' is really 'notification'!

    11. Brian says:

      Now perhaps is that moment in extremis? And people ought to be drawing up plans to attend to all those murky details that make democracy possible. Washington now appears to be a lost cause, a runaway federal government that men like Obama will only appear to govern.

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