The Epidemic of Calls for a Convention to Modify the United States Constitution
Scott N. Bradley
The efforts to call a convention to modify the United States Constitution have reached epidemic proportions. Numerous organizations have sprung up in favor of such an undertaking. Virtually all are highly organized, powerfully promoted, and well funded. They have succeeded in obtaining the endorsement of many in positions of prominence. They promote a spectrum of approaches to bring about their intention to change the Constitution. The Declaration of Independence recognizes the right of the people to alter or abolish their government and institute new government when their government does not secure the God-given rights they were instituted to preserve.
The United States Constitution incorporated in Article V of the Constitution a peaceful means by which that self-evident truth may be carried out:
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.
Notwithstanding the numerous other methods and nuances promoted by the various proponents fostering their “flavor” of “convention,” Article V of the United States Constitution defines the ONLY constitutional method. There is no other way to bring a convention about under the Constitution. There are innumerable other possible ways to alter or abolish the government, but none of them are found under the terms defined within the Constitution. And Article V of the Constitution is the sum and substance of the matter to date. Numerous procedures to define the convention process have been proposed over the years, and many are promoted today, but NONE have been codified. And efforts to create a “bullet-proof” codification of binding rules under which a convention (under any name by which it may be denominated) must be viewed with skepticism.
The truth of the matter is that a convention undertaken to modify the United States Constitution would be an autonomous deliberative body which may (or may not) undertake its proceedings within limited bounds based upon initial instructions it receives upon its calling. The 1787 Convention was constituted “for the sole and express purpose of revising the Articles of Confederation . . .” The Articles of Confederation was the then-existing constitution of the United States, and the definition of “revising” as noted in the charge of the 1787 Convention is “amending.” The 1787 Convention clearly understood and recognized their autonomous independence, and the convention set aside the existing constitution and wrote an entirely new one. While the Articles of Confederation had a requirement that ALL States approve ANY changes to the constitution, without the prior input or approval of the States, the Congress, or the People, the men of the 1787 Convention included in the new constitution a lower standard for ratification. When that lower standard of nine States, rather than the thirteen States required under the then-existing constitution was reached, the new constitution was considered fully approved and ratified. Fortunately, the men of the 1787 Convention were good and noble men, well seasoned in the principles of liberty and properly limited government, so the outcome of the convention and ratification led to the United States becoming the greatest, freest, most prosperous, most respected, and most happy nation on earth for many generations.
Even in his day, soon after the Constitution was ratified, James Madison received a suggestion that the nation undertake another convention. The United States Constitution was ratified during the Summer of 1788, so after that point a convention as defined under Article V (as suggested by some today) would have been the necessary process. In November of 1788 James Madison responded to the suggestion of another convention as follows:
“If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the Congress appointed to administer and support as well as to amend the system; it would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partisans on both sides; it would probably consist of the most heterogeneous characters; would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. Under all these circumstances it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony, or terminate in the general good. Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America, and under all the disadvantages I have mentioned.”
Elsewhere I have written:
“Some will argue that Madison’s term “General Convention” means something different than the type of convention which could be called under Article V of the Constitution, that it means a convention called for the specific purpose of creating a new constitution. However, “general” was often used during the founding era as pertaining to the national government as the general government. If used in that way, the term applies to any national convention to deal with the national constitution. To examine how the Founding Fathers used the term, we may examine how Founding Father Noah Webster defined the term in his1828 American Dictionary, which defines “general” thus:
“1. Properly, relating to a whole genus or kind; and hence, relating to a whole class or order. 4. Public; common; relating to or comprehending the whole community; as the general interest or safety of a nation.”
“Regardless of the exact way he used the term, Madison expresses his concern about how another convention will overstep its charter, become extremely politicized, and become dangerous to the nation. If Madison was concerned about the risks in his day, who would be so foolish to suggest that today we are in a political environment that is better suited to bring forth more sound doctrines of liberty and proper government?
“. . . . Where in all the world today may we find even one or two statesmen of the character and understanding exhibited by George Washington, Benjamin Franklin, George Mason, James Wilson, James Madison, and the others who, under the inspiration of God, framed our marvelous Charter of Liberty: The United States Constitution? We will search the world in vain for such individuals. Who, today, will sit in the seats occupied by those who brought forth the Constitution of 1787? NONE I would trust!”
The images of conventions today which are put out for public consumption are toothy “grip and grin” photo opportunities. Cheering, enthusiastic party-faithful crowds are the background fodder for the unity promoted to assure the success of the convention’s effort. The truth of the matter is that conventions for political undertaking are often slow motion bare knuckle brawls for power as the various factions wrestle for supremacy. It has been observed that “government is not eloquence, it is not reason, it is force . . .” Conventions for political purposes often are the embodiment of that axiom!
Hundreds of examples could be cited, but think of the skullduggery carried out in the convention environments in which Marx and Engels were selected to compile the Communist Manifesto in 1847, or the 1903 power struggle in the Second Party Congress between the Bolschevik and Menshevik factions, or the Beer Hall Putschs of the National Socialists during the 1920's, or the 1952 railroad job done on the Republicans by the Eisenhower machine when Taft was ousted.
Yes, the various proposals for conventions to modify the United States Constitution are well-polished marketing pieces designed to deflect and deny any suggestions of risk, but they are no guarantee of everybody playing nice and above board. The proposals are generally written in a benign style of academic earnest hopefulness, promoting a belief in the hope that the proposed undertaking could possibly take the desired trajectory and have the desired outcome. They are filled with hopeful terms like “should,” “could,” “might,” “possibly,” “ought,” “probably,” “depending,” “likely,” “reasonable,” “promise,” “nearly,” etc. These are terms that leave “wiggle room” in the outcome. All of the supposition and wishful projections are not sufficient justification for the immeasurable risks potentially associated with losing the document that has been the Charter of the Nation and vouchsafed our liberties for 225 years.
The old adage applies to the wishful thinking of the proposals for a convention: “If wishes were horses, beggars would ride.” All the wishful meandering and pontificating by those promoting a convention will not and cannot be guaranteed.
Regardless of the term by which the constitutional convention undertaking is obfuscated, be it a Constitution Convention, an Article V Convention, an Amendments Convention, a Conference of the States, or whatever, Article V of the United States Constitution says what it says (read it carefully):
“. . . on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments . . .”
When 2/3's of the States apply, Congress SHALL call a convention. And remember when the 1787 Convention was chartered it was for the purpose of amending the then-existing constitution.
Any variation on what the United States Constitution says in Article V about calling a convention is not constitutional, but may be another way to abolish the government. Some of the current convention proposals suggest another approach, such as the thought that the States might band together in some kind of prearranged alliance that is intended to bring about changes. This approach would arguably violate the Article I, Section 10 prohibition of States to enter into treaties, alliances, and confederations.
The bottom line is: There is nothing wrong with the United States Constitution! The problem is that the nation has stopped faithfully applying it. Those who claim to love the Constitution and promote changing it are inconsistent. If they love it they MUST abide by it. ALL who hold office take an oath to the United States Constitution. Those who hold office (and will likely sit in the seats of any convention which might be called) are oath-bound to uphold the Constitution. Their actions in violation of the Constitution have led to the difficulties under which the nation currently suffers. All of the challenges currently facing the nation are attributable to violations of the plain English words of the Constitution, and their original application. Those who hold office ignore their oath, violate the Constitution at will, and are to be trusted to correct the resulting problems in a convention that could possibly eviscerate the Constitution of the limits and bounds which are already inherent in the document???!!! One might reasonably ask: “Do we need an amendment that says ‘we really mean it this time?’” OF COURSE NOT! The officers who violate the Charter of the Nation now will continue to violate it, even if modified.
And suppose for a moment a convention is called and it limits its actions to a single issue as some propose, and the issue successfully goes through the ratification process by 3/4's of the States. What does that encourage? ANOTHER CONVENTION, AND ANOTHER, AND ANOTHER until the United States Constitution is a tattered rag that bears small resemblance to the original noble document, or it is ultimately scrapped altogether. Either way, We the People lose. And so do our posterity.
The corrective course is for We the People to become a virtuous people, well-schooled in the limits and bounds of the government bequeathed to us at such great cost in the body of the United States Constitution and the Bill of Rights, to educate our fellow-Americans in these principles, to promote them in word and deed, to elect soundly-founded representatives who will abide in their oath of office, and a willingness to correct any variance from the standard by those elected officials (or bureaucrats tasked with the responsibility to faithfully fulfill constitutional laws).
We do not need to “correct” the Constitution. We and our officials must abide by it. By so doing we will again become the greatest, freest, most prosperous, most respected, and most happy nation on earth.
—Scott N. Bradley
Bliss Tew’s letter:
Dear Utah State Representative Val Peterson:
Perhaps it has been forgotten that in February 2001 a resolution sponsored by Utah State Representative Fred Fife (D) to rescind Utah’s former applications to the U.S. Congress to call an Article V Convention was passed by both houses of Utah’s Legislature- HJR15.
HJR15 passed in the Utah house 67 to 0 with 8 absent. On February 27, 2001, if my diary is correct, the rescission resolution HJR15 passed the Utah Senate without a single dissenting vote. Those Utah legislators just thirteen years ago rescinded all previous applications to the U.S. Congress for the calling of an Article V Convention, called at the time a Constitutional Convention as it had been long labeled. Even though a Balanced Budget Amendment (BBA) had been the cause for which Utah had previously applied to Congress for Congress to call a Convention for proposing amendments, nevertheless Utah’s legislature rescinded Utah’s applications.
But now the BBA is revived and a new national promotion of the idea is coming from radio talk show host Mark Levin, from retire professor Robert Natelson’s promotion through ALEC, Nick Dranias, Michael Farris, Sean Hannity, Rush Limbaugh, and Glenn Beck. Surely we can trust these professors and pundits to have researched all the pitfalls, right? Maybe, maybe not. They certainly constitute a corroboratory media for those desiring the Convention call.
Is this question the most important concern Utah’s legislature will consider this year since the Constitution hangs upon the thread of your decision? This 2014 legislature, like the 2001 legislature, has a momentous choice to make- defend the Constitution or amend the Constitution.
HJR008, sponsored by Representative Kraig Powell, seems like a good “quick fix” to many legislators today if they have not yet had time to consider the drawbacks of initiating an Article V Convention for proposing amendments (plural) to our Constitution. Opening such a Pandora’s Box and thinking that such a Convention can be held to one proposed amendment ignores the language of Article V itself and the fact that the deliberative Convention once called will be an autonomous Convention that will make its own rules. Who can guarantee that no delegates from the other 49 States will propose other Amendments, even harmful amendments to the Constitution at the Convention? Even if it were a misdemeanor to do so (that’s what the bill in Wyoming proposes) would delegates fear a misdemeanor charge when they could shape the Constitution?
Yes, there are lawyers in Utah’s legislature that are championing this process and assuring everyone that somehow the process can be contained and controlled. Perhaps we are supposed to feel assured by the opinions of lawyers, but those opinions are still merely opinions. The fact is that no Article V Convention has ever been called so we have yet to see what will happen at such a convention until it is called. We have in the past seen what happened at the 1787 Convention and perhaps that is the closest model we can look at to see what to expect, though even that Convention was not an Article V Convention since Article V was written at that 1787 Convention. That 1787 Convention actually changed the rules for ratification of its own production.
The Balanced Budget Amendment (BBA) being suggested has escape hatches provided in it for Congress to deficit spend in times of crisis or war. When are we not in a crisis and a war, or even more than one war? How will the budget be balanced? Will it be by Congress cutting spending? Nothing in the BBA requires that as the method of balancing the budget does it? Then how about raising taxes to balance the federal budget? Oh that is allowed by a BBA. How about expanding the money supply of paper money through turning up the printing presses? That is not forbidden either. So hyperinflation of the currency could be used to balance the budget as Abraham Lincoln’s government did to some extent during the Civil War when he had “green backs” that were not backed by gold or silver printed to pay for war costs. Money was created out of paper to an unlimited extent and spent by the war department as needed to acquired necessities of war, a type of inflationary hidden tax. Is that what the BBA will bring us?
Is there anything in the BBA that requires Congress to stop its spending upon unconstitutional departments created without regard to the few delegated powers the Constitution actually granted to Congress, or stop its spending undeclared wars and military adventures as a global cop for the UN and NATO, or unconstitutional giveaways like foreign aid? Nope.
Isn’t it true that the Congress has the power today to actually cut spending and balance the budget by a vote of 1 over 50%? Then, why the need for a BBA and an Article V Convention? Will Congress, who ignores the Constitution so often now, obey a new amendment? In what way will they obey it? Is the BBA really just a handy cause célèbre to excite interest in convening the Article V Convention so that other revisions to the Constitution can be put forth? What special interests and hidden agendas are awaiting the Convention call?
Representative Peterson, Congress itself is a constant Amendments Convention isn’t it? Can’t Congress at any time propose amendments to the Constitution and pass such amendments by a 2/3rds vote on to the State legislatures or to the State Ratifying Conventions? Yes, Congress is empowered by Article V to do that. We have seen 27 amendments passed through Congress to the States, haven’t we? Are they all good amendments? How about the 16h Amendment or the 17th Amendment? Didn’t the States still ratify those arguably bad amendments? Then, what if dozens of amendments are proposed at an Article V Convention, couldn’t some new amendments pass the States ratification process at the 16th and 17th amendments did and prove to be unwise amendments too? Sure. Proof is seen in historical fact, not just opinions, right? If one amendment emanating from Congress as a proposal is a consuming concern of debate for a legislature, what would happen if many proposed amendments come to the legislature from an Amendments Convention, would each amendment proposal get the deliberative attention it should have?
What about representation at the Article V Convention; who decides how many voting delegates each state will have? Congress decides don’t they, since Congress calls the Convention. We are assured by proponents of the Convention that representation will be based on “one state, one vote” as the model as that has been the case at other conventions, but where in Article V is such an arrangement specified? Oh, it is not specified. Then, what if California’s Congressional delegation wants a proportionality rule for number delegates. After all California has 53 U.S. Representatives, Wyoming has 1, Utah has 4, Montana has 1. Won’t the big states like California and New York desire to see democracy in action through proportionality of representation as is seen in the Electoral College and the U.S. House of Representative? Shouldn’t that be the case at an Article V Convention as well, they will ask. And they will outvote Utah in Congress upon that question won’t they?
Val, I urge you, let our legislature not apply to open the Article V Convention at this juncture, no matter what name the proponents call it by "Convention of the States," or "Amendments Convention," etc., but rather let us try other ways of addressing the problems we are facing with the U.S. Congress and President. The root of our problems remain an electorate made up of voters largely ignorant of their Constitution and therefore not holding Congress and the President accountable to the Constitution. The Constitution is the solution not the problem.
Please oppose HJR8. Defend the Constitution from the left-leaning coalition of hundreds of organizations just dying to see the Constitution opened to an Article V Convention for proposing amendments:
Mr. Bliss W. Tew- Utah Citizen
909 West 500 North
Orem, UT 84057
P.S. Yes, I am the Regional Field Director of The John Birch Society. Perhaps Rep. Ken Ivory who wants to see an Article V Convention called will make a point of my employment, but the information I've supplied is as true as any to consider. Just because The JBS has historically opposed the calling of an Article V Convention doesn't mean JBS or JBS employees or members are somehow behind the times in our knowledge about Article V; quite the contrary. While I've read Mark Levin's chapter in his book where he promotes an Article V Convention, read Policy Reports by Robert Natelson on the topic, and even talked with leading-proponents of the Convention, I remain unconvinced by their assurances that they can hold a limited convention. Instead of the Convention route, if you'd like to discuss ideas of other ways to address our problems with the Federal government I'm at your disposal.