Article VThere are two ways to propose amendments to the Constitution: by a supermajority vote of the U.S. Senate and the U.S. House of Representatives, or by a convention called by at least two-thirds of the state legislatures. The second option is not, strictly speaking, a constitutional convention, but a convention for proposing amendments to the Constitution; the distinction is important.

My boss, Chief Justice Roy Moore of the Supreme Court of Alabama, recently sent letters to the governors of all 50 states, encouraging them to rally their state legislators to support an amendment to the Constitution to prohibit federal and state laws from defining marriage as anything besides the union of one man and one woman. Other conservatives, most notably Mark Levin, have trumpeted Article 5 as a mechanism for minimizing the power of the federal government through an array of amendments.

If the legislatures of 34 states were to demand such a convention, then, pursuant to Article 5, the Congress would be required to assemble one, and any amendment ratified at the convention by 38 states would become law.

The process sounds simple, but it isn’t. There’s no agreement about how the convention would be carried out. Do the state legislatures apply to Congress, which convenes to consider the states’ demands, draft amendments, and then relay the amendments back to the states for ratification? Or do the state legislatures play a greater role in the convention itself, including drafting the amendments to circumvent the power of Congress?

The prospect of an Article V convention is not without conservative critics who worry about runaway assemblies dominated by liberal elites in Congress. Another fear is that the convention might undertake so many amendments that it would spiral out of control and result in a complete makeover of the Constitution. Still another objection is that nullification is a better alternative, one that has been tried with limited success.

Although an Article V convention has never been used, hundreds of state applications calling for a convention have been filed during our nation’s history. The very possibility of a convention has even compelled members of Congress to adopt an amendment (the deplorable Seventeenth is an example, one that does little to assuage conservative fear of Article V) before the state legislatures could force Congress to convene.

Because an Article V convention has not been tried, there is no evidence that Congress would dominate the process; however, in light of the supremacy that all three branches of the federal government purport to have, concerns about a liberal takeover are justified, especially because no Democrats and only a handful of Republicans are actually conservative.

It remains unclear whether states applying for a convention are entitled to limit the convention to a particular amendment. Constitutional scholar Robert G. Natelson has suggested that the framers of Article V were writing and thinking in a historical time and place in which conventions were mostly state affairs, but that larger conventions, such as the Springfield Convention of 1777, did occur. This is evidence that an original understanding of conventions confined their scope and agenda to particular issues defined by the states. Whether an Article V convention today would be so limited is, of course, unknown, but Mark Levin has proposed ten amendments, and there is little doubt that the left would counter such a number with all the strength it could muster.

A case can be made that an Article V convention affords states the opportunity to go around Congress or at least to limit federal control over the scope of the convention. Even if the states retain the power to organize and direct the convention, however, no guiding principles tell us who will vote, how to establish rules and procedures, and whether and how much state legislators will interact with Congressional leaders to reach any form of consensus.

The bottom line is this: whatever amendments come out of an Article V convention would have to be ratified by three-fourths of the states before becoming effective. The states that applied for the convention would not likely ratify a proposed amendment that differed radically from what the states expected to accomplish by convening.

In an age when the president of the United States touts the power to use executive orders in contravention of the other branches of government, to kill Americans with drone strikes, and to meddle in the relationships between doctors and patients and mandate that individuals purchase health insurance or pay penalties; when he pushes the country to increase the national debt to an amount higher than the total sum of the debt incurred in the first 227 years of the nation’s existence; when the National Security Agency spies on citizens using mass surveillance technology; when the Federal Communications Commission seeks to control what stories newsrooms may run; when the Internal Revenue Service targets particular groups because of their political beliefs; when the Department of Defense seeks to indoctrinate soldiers to accept that people who extol the virtues of the Founding Fathers, or who believe in the fundamental teachings of biblical Christianity, are extremists and potential terrorists; when the Supreme Court invents doctrines that subvert the Constitution from which they supposedly derive—when, in short, the federal government has run amuck, is it not time to at least try an Article V convention? All things considered, doesn’t the ominous size and scope of the current federal order suggest that it’s more dangerous not to attempt an Article V convention?

It’s time to drive state legislators for hope and change we can believe in, not hope and change that seek to destroy our beliefs. An Article V convention might just help us to recover our country.

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10 replies to this post
  1. Have we gone mad?

    Many of those calling for an Art. V convention have no idea what they are asking for. They have blinded themselves to the fact that there is no way to stop a new constitution with its own new method of ratification from being imposed on the American People.

    Only amendments require ratification by ¾ of the States (see Art. V). But a new constitution would have its own new method of ratification – it can be whatever the drafters want. For example, the proposed Constitution for the Newstates of America is ratified by a referendum called by the President (See Art. XII, section 1).

    Once the delegates are duly appointed & assembled, they are acting under the inherent authority of A People to alter or abolish their form of government [Declaration of Independence, 2nd para]; and have the sovereign power to do whatever they want at the convention.

    This is what happened at the Federal Convention of 1787. Pursuant to Article XIII of The Articles of Confederation, the Continental Congress resolved on February 21, 1787 to call a convention to be held at Philadelphia “for the sole and express purpose of revising the Articles of Confederation”. But the delegates ignored this limitation and wrote a new Constitution. Because of this inherent authority of delegates, it is impossible to stop it from happening at another convention. And George Washington, James Madison, Ben Franklin, and Alexander Hamilton won’t be there to protect you.

    The Articles of Confederation required the approval of all 13 States for amendments to the Articles to be ratified. But the new Constitution provided it would become effective if only 9 of the 13 States ratified it (Art. VII, cl. 1, U.S. Constitution).

    So at the Federal Convention of 1787, the drafters provided for a mode of ratification which was likely to result in ratification.

    At the Article V convention Judge Moore is clamoring for, the delegates can come up with a new Constitution which does not require 3/4 of the States to ratify. Scholars have warned of the Constitution for the Newstates of America which is ratified by a referendum called by the President. Once a convention proposes it, it is taken away from the States altogether and turned over to the President to call a Referendum.

    There is no way to stop this from happening. And the Blood will be on the hands of all who clamored for this Convention.

    Here is the constitution for the newstates of America:
    http://www.sweetliberty.org/issues/concon/newstates.htm

  2. That risk always exists, but generally maybe having a convention is a better way to iron out alot of the problems in the US rather than just letting the Supreme Court re-interpret Constitutional language to fit the times, which does something even worse. Very difficult problem, but if we can’t trust Americans to do their duty as citizens in a peaceful convention, then what’s the point of politics?

  3. To say, “That risk always exists”, is an understatement. There is a reason that George Soros is funding much of this push for an Article V convention, and there is a reason that the progressives want a convention. What might that reason be? Soros is buying a new Constitution; but this is being sold to the American People as the only way to “limit the size and scope of the federal government.” Surely, no greater lie was ever told to a gullible public.

    You assume much when you suggest that decent and peaceful American citizens will be in control of this convention. You have no evidence to support that – because no such evidence exists. Delegates will be appointed either by Congress or by the States – both of whom have colluded for 100 years to violate the Constitution.

    You present false alternatives as the only courses of action: You say we must either take the risk of a convention OR let the supreme Court have its way.

    There is an alternative: I suggest the solution is to learn and enforce the Constitution we already have.
    Very few people have any idea what our existing Constitution says about anything. The reason we are in this mess is because – for the last 100 years – everyone has ignored the Constitution we have. An ignorant People elected ignorant candidates who, once in office, did whatever they wanted. THAT is the problem.

    Except for some of the existing amendments the gullible American People were manipulated into supporting, our Constitution is a masterpiece of limited civil government. But people don’t know that because they never bothered to learn it. And yet they claim to know all about how to amend a document they never read.

    You can’t fix THESE problems by changing the Constitution.

    Here is the article about the Soros funding of the push for an Art. V convention:

    http://www.thenewamerican.com/usnews/constitution/item/17402-socialists-and-soros-fight-for-article-v-convention/17402-socialists-and-soros-fight-for-article-v-convention?start=9

  4. To say, “That risk always exists”, is an understatement. There is a reason that George Soros is funding much of this push for an Article V convention, and there is a reason that progressives want a convention. What might that reason be? Soros is buying a new Constitution; but this is being sold to The American People as the only way to “limit the size and scope of the federal government.” Surely, no greater lie was ever told to a gullible public. But many have been deceived, as the author of the featured article article and you illustrate.

    You present false alternatives as the only courses of action: You say we must either take the risk of a convention OR let the supreme Court have its way.

    There is an alternative: I suggest the solution is to learn and enforce the Constitution we already have.
    Very few people have any idea what our existing Constitution says about anything. The reason we are in this mess is because – for the last 100 years – everyone has ignored the Constitution we have. An ignorant People elected ignorant candidates who, once in office, did whatever they wanted. THAT is the problem.
    Except for some of the existing amendments the gullible American People were manipulated into supporting, our Constitution is a masterpiece of limited civil government. But people don’t know that because they never bothered to learn it. And yet they claim to know all about how to amend a document they never read.

    You can’t fix THESE problems by changing the Constitution.

    Here is the article about the Soros funding of the push for an Art. V convention:
    http://www.thenewamerican.com/usnews/constitution/item/17402-socialists-and-soros-fight-for-article-v-convention/17402-socialists-and-soros-fight-for-article-v-convention?start=9

  5. Rob,
    You must demand that people prove what they say. You have been told – and believed – something which is FALSE.

    This is what actually happened respecting the first 10 Amendments. And if you click on my links to the original source documents, you will see that what I say is absolutely TRUE:

    James Madison always advised that when States want amendments, they instruct their Congressional delegation to pursue it. This is the best way for the States to “originate amendments”.

    That is the mode Madison strongly recommended; that is the mode we have always followed – until now.

    On May 5, 1789, Rep. Bland (pages 258-261) introduced into Congress the petition from the State of Virginia for an Art. V Convention to propose amendments. http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=130

    But on June 8, 1789, James Madison (pages 448-460) circumvented Rep. Bland, and Madison introduced 12 proposed amendments for Congress to propose to the State Legislatures. http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=225

    And on September 24, 1789, the House & Senate having agreed on the wording of the proposed amendments; the House requested the President to transmit them to the States for ratification. http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=475

    Do you see?

  6. What’s in a Word.

    Firstly, The debate the Hon Mr. Mendenhall wishes to bait you into is simply to divert your attention from the real issue. The only question you need to ask yourself is this:

    Why should you believe that our public servants, who have been violating their sacred and solemn oath to support the Constitution, for over one hundred years, will all of the sudden begin honoring a newly amended Constitution?

    Explain how amending the Constitution will change lying, self serving, corrupt , partisan politicians into statesmen?

    Our public servants no longer fear God and they do not fear “We the People”. Their oath to support the Constitution (Art. VI Cl. 3) requires they have a working knowledge of the Constitution when they take office and very few do. They do not fear us because we do not hold them accountable.

    We can’t because we don’t know let alone understand the Constitution anymore they the politicians do. At best we know and play partisan politics like voting for the “lesser of two evils”.
    At its best, an amendments convention will do nothing and at its worse it will eliminate or greatly reduce the sovereignty of the states and “We the People”.

    Secondly, The Hon. Mr. Mendenhall, with all due respect , is playing fast and loose with the language of the Constitution. Words have meanings and this is especially true in science and law.
    He says one way to amend the Constitution is by “… a convention called by at least two-thirds of the state legislatures….” (The emphasis is mine.)

    This is absolutely false. The Constitution says:

    ” 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…”

    The states make “Application” to Congress to convene an amendments convention and in fact it is Congress that has to “call” the convention.

    The term “call” in this context is extremely important. It is a term of art under parliamentary law and parliamentary law is largely what regulates how “conventions” are run.

    I have seen over and over again the Promoters of an Article V play this same linguistic trick in their effort to convince the people and ignorant state legislators the states control such a convention. I even had one of my state legislators, who was an attorney and retired federal judge, tell me the “states call” the convention.
    He even wanted to argue the point with me until I pulled out my Constitution and read it to him. He was clearly embarrassed and in an effort to cover up his error he said “Well the call is purely ministerial.” This was yet another false statement.

    Thirdly, the movement for an Article V has been going on for over fifty years. It was initially funded by the Ford Foundation to the tune of 1/2 billion to 1.2 billion dollars in today’s money. It has always been backed and promoted by billionaires and their foundations and lackey non-governmental organizations. Today the biggest backers are the Koch brothers and George Soros. Even the talking heads liked Limbaugh, Hannity, Beck and Levin are being paid millions indirectly by those that support an Article V, primarily the Koch brothers.

    No we have not all gone mad, its worse. We have lost our faith and courage of our convictions.

    For the Sake of Liberty,

    Richard D. Fry
    General Counsel
    Patriot Coalition
    DefendNotAmend.com

    Abuse of words has been the great instrument of sophistry and chicanery, of party, faction, and division of society.
    John Adams

    “When words lose their meaning, people lose their freedom.”
    -Confucius (551 BCE – 479 BCE)

  7. State governments don’t follow the Constitution any more than the feds do. They have as bad a track record as Congress. And we’re supposed to trust them to amend the Constitution? Not in this lifetime. I don’t see Judge Moore suggesting we amend the 10 Commandments as a solution to people not following them. That’s how insane triggering an Article V Convention is. It’s the wrong solution to the wrong problem.

    Until We the People start supporting the Constitution by holding our public servants accountable, no amendment will change anything.

  8. Nullification is just one part of the correct solutions we have, and for the very reasons Article V convention supporters claim we should “look at the map” or “do the math”. Without spending too many words you won’t read anyway, I can tell you that if the red states nullify the NDAA and other “laws” that ignore our Constitution, the overarching law of the land, we will win a smaller, less oppressive government. We didn’t lose states’ rights with Lincoln’s war. We simply became afraid to assert them–for far too long. Now, instead of the civil unrest that would follow an Article V convention, when we know who is HEAVILY funding it, we should exercise our rights to recover the land of opportunity we once were, we should NOT subject ourselves to Congress, who would govern the rules of an Article V convention. Congress, with its abysmal record of NOT fighting executive orders, NOT following the Constitution and not listening to us…why would we trust them? If you want to know how to regain our God given rights, look in the mirror. We have to keep watch over what our reps do: Your state legislators must exercise our 10th Amendment rights, and do it fast, or the snake oil salesmen promoting an Article V convention will see to it that you lose most of the remaining rights you have. Don’t buy the snake oil. NULLIFY!

  9. Nullification is the answer, and for the very reasons Article V convention supporters claim we should “look at the map” or “do the math”. Without spending too many words you won’t read anyway, I can tell you that if the red states nullify the NDAA and other “laws” that ignore our Constitution, the overarching law of the land, we will win a smaller, less oppressive government. We didn’t lose states’ rights with Lincoln’s war. We simply became afraid to assert them–for far too long. Now, instead of the civil unrest that would follow an Article V convention, when we know who is HEAVILY funding it, we should exercise our rights to recover the land of opportunity we once were, we should NOT subject ourselves to Congress, who would govern the rules of an Article V convention. Congress, with its abysmal record of NOT fighting executive orders, NOT following the Constitution and not listening to us…why would we trust them? If you want to know how to regain our God given rights, look in the mirror. We have to keep watch over what our reps do: Your state legislators must exercise our 10th Amendment rights, and do it fast, or the snake oil salesmen promoting an Article V convention will see to it that you lose most of the remaining rights you have. Don’t buy the snake oil. NULLIFY!

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