Looking Under the Hood of an Article V Convention, Part I

By: Brent Parrish

article-v-magnifying-glass

“The price of liberty is eternal vigilance.” —Thomas Jefferson

“A well-instructed people alone can be permanently a free people.” —James Madison

“The accumulation of power in the same hands may be pronounced the very definition of tyranny.” —James Madison

“For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth—to know the worst and to provide for it.” —Patrick Henry

There has been quite a bit of banter as of late about calling an Article V convention to amend the Constitution in the hope that it will rein in our out-of-control federal government. The desire to call a constitutional convention is not just restrained to one side of the political spectrum; it is coming from both sides.

So just who is it that is pushing for an Article V Convention, and why? And just what is an Article V Convention, anyway?

A number of “right-wing” groups are actively promoting the call for a convention, such as the Convention of States Project (COS), Compact for America, American Legislative Exchange Council (ALEC), Balanced Budget Amendment Task Force, Middle Resolution, and others.

There are also a number of individuals and groups on the left to far left-side of the political spectrum who support the idea of calling a convention, including Wolf PAC, Alliance for Democracy, Center for Media and Democracy, Code Pink, Independent Progressive Politics Network, Progressive Democrats of America, Sierra Club, Vermont Single-Payer, Moveon.org, Green Party, Occupy Movement, Young Turks, George Soros, Prof. Lawrence Lessig, Sandy Levinson, and others.

When I first read about a renewed movement afoot calling for a convention to propose amendments, I thought, perhaps, it just might be a good thing. Maybe it was the one remedy we have left to put a brake on the overreaching authority fo the government. A few of my conservative and libertarian-leaning friends seemed quite enthusiastic about the idea.

I wholeheartedly agree with those who claim our government is engaged in egregious, unconstitutional acts. We have an entitlement state that is out of all bounds, and a regulatory state that is utterly lawless. But we did not arrive at this point we now find ourselves in overnight. That much is certain. The move away from adherence to the U.S. Constitution can be traced back many decades. All three branches of the government are guilty of flagrant constitutional disobedience, and of grossly usurping the enumerated powers that are clearly listed in the U.S. Constitution.

It was around the time I first started to observe a marked increase in the push for an Article V Convention coming from the right that I heard about Mark Levin’s book The Liberty Amendments (published in 2013). The book debuted at #1 on the The New York Times Best Seller list. Mark Levin, a popular conservative talk show host and constitutional lawyer, is an ardent proponent of an Article V Convention to propose amendments, allegedly for the purpose of smacking down the Washington behemoth.

Here are the eleven amendments being proposed by Mark Levin. [1][2]

  1. Impose Congressional term limits
  2. Repeal the Seventeenth Amendment
  3. Impose term limits for Supreme Court Justices and restrict judicial review
  4. Require a balanced budget and limit federal spending and taxation
  5. Define a deadline to file taxes (one day before the next federal election)
  6. Subject federal departments and bureaucratic regulations to reauthorization and review
  7. Create a more specific definition of the Commerce Clause
  8. Limit eminent domain powers
  9. Allow states to more easily amend the Constitution
  10. Create a process where two-thirds of the states can nullify federal laws
  11. Require photo ID to vote and limit early voting

At first blush, Levin’s list of amendments appeared reasonable to me. I support a number of these proposals, but not all of them. Admittedly, my initial gut reaction was that it seemed a bit too much … a bit too complicated. And I was surprised to discover so many left-wing groups were enthusiastically entertaining the idea of a convention. The question I started to ask myself was, Is calling a convention the best way to go about reining in the government? What are the advantages? What are the pitfalls? Do I even thoroughly understand all of the amendments people like Mark Levin are proposing? When is it advisable to call a convention according to the provisions in Article V? Why are the left-wingers for it?

I had to admit that I did not have satisfactory answers to all my questions. I needed to do more research. I never, ever rely on just one single source, regardless of how sound or credible that source may be. We all have feet made of clay, even the Founders. I prefer to look at the full-spectrum of opinion, both pro and con. When it comes to something as serious and profound as making changes to the U.S. Constitution, it is imperative to closely examine the pros and cons … in my ever-so humble opinion.

In my analysis of Article V, I wanted to avoid the logical fallacy known as “stacking the deck”—meaning, I will only support my position by using arguments favorable to my own point of view, while discarding any evidence or facts that do not support my premise. The “stacking the deck” fallacy has much in common with “confirmation bias.” I might add, however, “confirmation bias” sounds more like a psychological disorder, as opposed to a de facto logical fallacy. But I digress.

logical-fallacy-meme-confirmation-bias

In this article my goal is to clearly and concisely express my thoughts, questions and concerns on the subject matter of an Article V Convention. I will attempt to make every effort to present both sides of the argument as fairly as I can, and to avoid sheer speculation, or present mere conjecture as fact. And let it be stated here that I am not a constitutional scholar, nor a lawyer, nor a historian, nor an expert. Period. I am just a guy who tries to do his homework, and do it thoroughly.  And I will also plainly state that it will be impossible for me to not inject some of my own thoughts and opinions in this piece; since it was one of the main motivating factors in the writing of this article in the first place. But I will make every effort to delineate opinion from fact.

I have been researching the Article V issue off and on for several months. This is a very meaty topic, hence my decision to break the article up into several parts. By no means is this series of articles meant to be an exhaustive or comprehensive treatment on the subject matter of an Article V Convention; but I will be covering numerous aspects concerning Article V, and the wisdom, or lack thereof, of calling a convention. And as we will see, there are many schools of thought when it comes to the subject of a constitutional convention. There is also, naturally, a fair amount of disagreement amongst scholar and layman alike.

In 1831, a young Frenchman named Alexis de Tocqueville was given the assignment by the French government to travel to America in order to study the U.S. prison system. While in the United States, he also took the opportunity to study the strengths and weaknesses of American society. He later published his observations in his now famous work Democracy in America.

Alexis de Tocqueville

Alexis de Tocqueville

Alexis de Tocqueville remarked on the early 19th Century American citizenry:

“… [E]very citizen is taught … the history of his country, and the leading features of its Constitution…. [I]t is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is sort of a phenomenon.” [3]

Unfortunately, if we fast-forward to today, it would be exceedingly rare to meet an American citizen who was wholly familiar with the Constitution, especially in the manner in which De Tocqueville had observed in the early 19th Century. More than likely, if you were to ask the average U.S. citizen nowadays what form of government we have, or what the three branches of government are, or who would succeed the president and the vice president if they were both killed in a plane accident, I would surmise the majority of those queried would not have a clue. Constitutional literacy and the principles of Americanism are often glossed over, or completely ignored, or demonized, in American public education. Whether this is by design, or not, would require a separate article.

Needless to say, this has created a populace unaware of their rights, and ignorant of whether their elected leaders are usurping the very Constitution they were sworn to uphold, defend and protect. Sadly, even many of our elected leaders are ignorant of the U.S. Constitution, and their own State Constitutions as well.

So, before I delve into the innards of the whole current Article V debate, perhaps it would be worthwhile if we start with a cursory overview of early American history as it pertains to the origins of the U.S. Constitution itself.

The Declaration of Independence laid out the principles and powers that were later implemented in the U.S. Constitution. These principles and powers form the very legal foundation for the laws we have now. Before the Declaration of Independence was written, the rights that were granted to the people came from two sources: the king or the state. The United States is the very first nation in history to reject this notion, instead asserting that our rights come from our Creator, or nature; they are natural rights that no man or woman can grant or take away. The true sovereign is the people themselves, not a monarch or an all-powerful state. The principles contained in the Declaration of Independence established our country as a free and independent nation; it established our law and the powers of the country.

Declaration of Independence Copy Up for Sale

Below are the first two, and the very last, paragraphs of the Declaration of Independence (emphasis added):

When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

[…]

We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Following the Declaration of Independence on July 4th 1776, the 1st Continental Congress convened during wartime to write our first written constitution known as the Articles of Confederation. Progress was slow in ratifying the first constitution due to fears about the centralizing of power and extensive land claims by the States. It was finally ratified on March 1st 1781. But there were still flaws and significant disagreement among the 13 existing States over the Articles.

In 1787, the 2nd Continental Congress convened for “the sole and express purpose” of amending the Articles of Confederation. Article XIII of the Articles laid out strict parameters by which the Articles would be enforced, and the process for amendment.

Article XIII

Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. [4]

Despite the limit imposed by the confederation Congress, the Federal and State delegates at the first Constitutional Convention in Philadelphia ended up throwing out the Articles of Confederation altogether, due to numerous disagreements over the amendments, and the fact ratification required all 13 States unanimously agree upon any alterations.

Fortunately, by throwing out the Articles altogether, and requiring only nine States out of thirteen would be required to ratify (see Article VII of the U.S. Constitution), the Framers produced the Constitution we now have today. The ratification process that started in 1787 lasted two years.

Despite the fact the convention convened during what James Madison described as “propitious circumstances,” it was still a very contentious event, as one might imagine. Incredibly, just two years later following the ratification of the U.S. Constitution in 1789 there was yet another call to convene a second convention; but the call failed, thankfully.

In the 227 years since the first Constitutional Convention, there have been over 700 applications to Congress to call a second convention. Activity for a second convention really picked up during the late 19th Century. In the 1960s, 1970s, and 1980s there were concerted drives for an Article V Convention. Thirty-two of the necessary 34 states applied for a convention calling for a for a Balanced Budget Amendment between 1975-83. Sixteen states passed Resolutions of Participation for Conference of the States (COS) between 1994-95.

When I first started to inquire into the desirability and practicality of convening a convention to propose amendments, according to Article V of the U.S. Constitution, I noticed a rather peculiar reaction by the proponents. They are often times insistent that what they are promoting is not a “Constitutional Convention,” per se, but rather an “Article V Convention” or a “Convention of States” or “Amendments Convention,” and on it goes. But, without a doubt, at least in my experience, the oft-preferred term by the proponents is a “Convention of States” (COS). Those who are not keen in calling an Article V Convention, at this time, prefer to call it a “Con-Con.” I will be using all the aforementioned terms interchangeably, just so nobody feels left out (cf. sarcasm).

(Note: From here on out I will refer to those who support a convention as “proponents,” and those who oppose a convention as “opponents.”)

Regardless of what one prefers to call a convention, What is its intended purpose? Are there really any profound technical differences between an Article V Convention, a Convention of States, or a Constitutional Convention, etc.?

To answer this question in some sort of definitive way, at least for myself, I turned to Black’s Law Dictionary, considered the preeminent U.S. legal reference, according to legal experts I have consulted. I looked up the definition for “Constitutional Convention.”

Blacks-Law-Dictionary-Constitutional-Convention-Definition

So, my question for proponents is this, Regardless of what proponents or opponents prefer to call a convention, is not the intended purpose for a convention to frame (or re-frame), revise or amend the U.S. Constitution? Admittedly, the emphatic insistence by proponents that I not call an Article V Convention a “Constitutional Convention,” but rather a “Convention of States,” reminds me a bit of the controversy surrounding the Common Core State Standards Initiative (CCSSI) for national education standards—which was sold as a voluntary states’ initiative, when, in reality, it was anything but. But I digress.

The important question is, Where in the Constitution does it grant the authority to convene a convention for the express purposes of proposing amendments? And what does it say about it? The power to “call” a convention is contained in Article V of the U.S. Constitution.

Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, 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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

There are two methods laid out in Article V to amend the Constitution. The first method involves Congress proposing to amend the Constitution through a two-thirds majority vote in both Houses (Senate and the House of Representatives), followed by ratification by at least three-fourths of the States. All 27 existing constitutional amendments have used this method.

The second method for amending the Constitution entails at least two-thirds of the States submitting an application to Congress to “call” a convention to propose an amendment or amendments.

“… [O]n the application of the legislatures of two thirds of the several states, [Congress] shall call a convention for proposing amendments …”

Once two-thirds (34) of the States have applied to Congress, it is Congress that makes the “call” to convene a convention. The States do not make the “call” for a convention; they simply apply for a “call.” It is Congress, and Congress alone, that shall call the convention.

“The Congress … shall call a convention for proposing amendments …”

There are only two defined limits contained within Article V.

The first limit:

“… [P]rovided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article …”

The first Article V limitation is no longer applicable since it concerns the “importation of slaves,” and only applies to amendments prior to 1808.

The second limit contained in Article V is “that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” This is the only defined limit spelled out in Article V that applies today. One could argue that the one defined limit in Article V is a moot point, considering the Seventeenth Amendment literally “drove a stake” through “equal suffrage in the Senate.”

James Madison spelled out where the House of Representatives and the Senate shall derive their powers in Federalist Paper No. 39 (emphasis added):

“… The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State…. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress….”

Since the Seventeenth Amendment calls for direct election of senators by popular vote, instead of appointment by their respective state legislatures, an important bulwark has been torn down between the States and the Federal government—in effect, changing the strictly Republican form of government (see Article IV, Section 4) to a semi-democracy. While this may seem like a bit of detour from the subject at hand, it could very well have an influence on the Article process, as I will explain more fully later.

Article V also lays out two methods for ratification.

” … [W]hen 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 first method requires three-fourths of the state legislatures approve ratification of amendments. The second method involves “conventions” (sometimes called “ad hoc conventions”) being called in each state for the ratification of an amendment or amendments. A “ratification convention” is more like a “rubber stamp committee.” Delegates at a “ratification convention” have already been given their “marching orders,” so to speak.

The only time the “ratification convention” method was ever used was during the repeal of the Eighteenth Amendment (Prohibition). In order to successfully repeal prohibition in teetotaler States like Utah, for example, only delegates predisposed to vote in favor of ratifying the Twenty-First Amendment were sent.

State legislatures, it was assumed, would be less open to change, and more interested in preserving the status quo. This understanding evidently motivated the framers of the 21st Amendment, which effectively ended prohibition; according to one source, pro-repeal Members favored this mode of ratification because they believed that they clearly had popular sentiment on their side, and furthermore, they distrusted the response to the issue of rural-dominated state legislatures. [5]

Article V clearly states Congress “shall call a convention.” The conventional wisdom is a convention becomes its own entity once convened; it is its own deliberative body separate from both State legislatures and Congress. Some say it is analogous to firing a bullet from a gun: the bullet cannot be “called back” once the trigger has been pulled. Naturally, there is disagreement. The proponents of a convention insist a “Convention of States” will be controlled by the States, and limited in scope.

Congressional-Research-Service-CRS

The Congressional Research Service (CRS) is an allegedly nonpartisan department assisting members of Congress in research so they can make “informed votes.” Members of Congress cannot know everything concerning every single issue that comes before them; so the CRS exists to assist in research.

In April 2014 the Congressional Research Service compiled a report addressing the increased interest in a Article V convention, and what Congress’ role would be should a convention be called. One of the issues the CRS report addressed was whether or not Congress was even required, or “obliged,”  to call a convention. [6] On this particular issue, there is a great deal of agreement among both opponents and proponents that Congress is required to “call” a convention once two-thirds of the several States have applied to Congress under the requirements set forth in Article V.

Ultimately, it is difficult to conceive that Congress would fail to heed the deliberate call of a substantial majority of the nations citizens, acting through the agency of their state legislatures, and meeting the clearly stated requirements of Article V. [7]

The other major issue facing Congress is what sort of convention was envisaged by the Founders.

Commentators have generally suggested three alternative models for the Article V Convention: the general convention; the limited convention; and the runaway convention, actually a subset of the limited convention. [8]

The general convention is described as “broadly inclusive”—meaning, the convention’s purview is unlimited in the number or scope of the amendments that could be proposed.  The conventional wisdom posits a general convention is a “sovereign body.” But others reject the sovereignty argument, “primarily on the grounds that an Article V Convention can only be summoned subject to the conditions of the Constitution.” [9]

The opposing view to a general convention is that an Article V Convention can be limited.

A broad range of constitutional scholars holds that a convention may, in fact, be limited to a specific area or areas contained in state applications, or indeed, that it must be so limited. [10]

There is a great deal of controversy and countless questions surrounding the issue of whether a convention can be limited. Many insist that a convention is a sovereign body that ultimately can set its own rules once it has been convened, irrespective of any limitations placed upon it by Congress or State legislatures. But if we look to our own history, the Declaration of Independence provides some precedence as to what could ultimately unfold should a convention be called under Article V of our Constitution:

… That whenever any form of government becomes destructive … it is the right of the people to alter or to abolish it, and to institute new government …

In Part 2, the numerous unresolved questions surrounding the uncharted waters of an Article V Convention, and some of the prominent individuals on both sides of the political aisle who are actively promoting and calling for a convention, as well as those who are opposed to it, and why, will be explored.


FOOTNOTES

  1. Jacobson, William (August 12, 2013). “The Liberty Amendments – Mark Levin’s Constitutional Sequester.” Legal Insurrection. Retrieved July 4, 2014.
  2. Smith, Kyle (September 1, 2013). “Why are major media outlets ignoring bestselling writer Mark R. Levin?.” New York Post. Retrieved March 24, 2014.
  3. Alexis de Tocqueville. American Institutions (Late Sever, Francis, & Co. 1874), p. 404
  4. Articles of Confederation (March 1, 1781), Article 13. Retrieved April 21, 2015.
  5. Thomas H. Neale (April 11, 2014). The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress. (Congressional Research Service), p. 33.
  6. Ibid., pp. 18-9.
  7. Ibid., p. 20.
  8. Ibid., p. 20.
  9. Ibid., p. 22.
  10. Ibid., p. 23.

About Brent Parrish

Author, blogger, editor, researcher, graphic artist, software engineer, carpenter, woodworker, guitar shredder and a strict constitutionalist. Member of the Watcher's Council and the Qatar Awareness Campaign. I believe in individual rights, limited government, fiscal responsibility and a strong defense. ONE WORD: FREEDOM!
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