Restoring balance: How an Article V Convention restores liberty under the law

Convention of States Article V

Sally Morris’ recent vitriolic attack on the Convention of States initiative raised some legitimate concerns that deserve thoughtful responses. Amending the Constitution is a very serious business. Supporters of the Convention of States project – from activists to legal scholars, from state legislators to governors and senators – appreciate the significance and risk. They understand both the risk of amending the Constitution and the risk of failing to restore constitutional authority.

The framers of the Constitution expected changes would be necessary and included provisions for making amendments, but they placed very high thresholds for both proposing and ratifying changes. On September 15th, 1787, delegate George Mason pointed out the dangers of an amendment process dependent on the cooperation of Congress. The Framers accepted an oppressive Congress would never propose amendments to curtail their own power. Therefore, they unanimously agreed to add a second method for proposing amendments in Article V of the Constitution where two-thirds of the state legislatures – independent of the Congress – could call a convention for proposing amendments. The safeguard of ratification remained unchanged: three fourths of the states needed to vote for ratification for an amendment to become part of the Constitution.

If the convention provision was approved unanimously, then why did James Madison oppose a convention in the unsourced quote provided by Morris?

Context is important when evaluating purported conflicting statements. The extensively redacted quote was from a letter written by Madison responding to a specific question about New York’s call for a second general convention, not necessarily an Article V convention. Many of the leading Anti-Federalists were from New York, including the sitting governor George Clinton. Madison wrote the letter while the acrimony from contentious ratification fights was still fresh and ongoing, but before the Bill of Rights amendments were proposed to allay fears and satisfy reservations concerning protection of civil liberties. Congress was five months away from taking office. The Anti-Federalists sought to drag out the process by demanding changes before ratification and adoption. New York requested 33 alternations to the Constitution. The Federalists could not allow the implementation of the Constitution to be filibustered or delayed to death by the perfect being made the enemy of the good.

In the letter, Madison argued for proposing amendments through Congress to legitimize the new government and as the quickest way to propose amendments guaranteeing civil liberties while avoiding a repeat round of ratification fights. There is no indication Madison’s comments were general or apply beyond the particular event and political environment the Federalists were trying to navigate at the time.

Earlier, both Madison and Alexander Hamilton – in addition to voting for the provision – favorably referenced the Article V convention in the Federalist Papers No. 43 and No 85 respectively. A convention, called by the state legislatures for proposing amendments, is the process the framers envisioned.

Some confusion stems from Morris conflating a general or constitutional convention with a convention for proposing amendments to stain the latter with the negative connotation of the former. They are not the same. A general or constitutional convention writes a new constitution intended to replace, not amend, the existing Constitution. There are no active movements or prominent leaders calling for a general convention.

From quips about our lack of modern day statesmen to 50-year-old conspiracies to supplant the Constitution with social justice mandates, the core objection Morris raises is the peril of a runaway convention. This is a sensible concern requiring an earnest answer. What happens if the delegates propose an amendment to ban fossil fuels or grant citizenship to four-legged mammals? Those are extreme examples, but the risk is real.

If we consider how the Articles of Confederation were replaced in 1789, we see the same risk is run daily without a convention. Any person or group — from David Duke to the Hell’s Angels biker gang to social justice warriors — can write a new constitution. If they can persuade state legislatures to ratify their document, they can form a government. Of course, the ratification of random documents is unconstitutional, and nobody seriously thinks the state legislatures will ratify such a document.

The delegates to the 1787 Constitutional Convention drafted the Constitution starting with a clean slate. While most of the delegates enjoyed the authority of their state legislature, ratification was the legal basis for dissolving the Confederation and forming a new government despite a clause in the Articles of Confederation stating, “the Union shall be perpetual.” In the end, our state legislatures are the principal protection against the Racist and Violent Gang Kingdom forming today and against any bad amendments, regardless of the source.

Is the threat any greater than with our ongoing constitutional convention in the form of the US Congress? Congress can propose an amendment at any time. Just two years ago, Senate Democrats pushed aggressively for a new amendment to strip much of the freedom of speech protection from the First Amendment. Fortunately, the measure failed, but the fact remains the “runaway” risk is substantially similar to the danger we face today in Congress.

The next logical question is who would advocate repealing the Freedom of Speech (besides Senate Democrats who already did)? The delegates matter or we could end up with social justice warriors, Klan members, national socialists, and members of violent biker gangs. The example is extreme, but the concern is well founded.

The application for the Convention of States goes a long way toward mitigating this hazard. The application language narrows the scope and only authorizes delegates to consider proposing amendments that “impose fiscal restraints on the federal government, to limit the power and jurisdiction of the federal government, and to limit the terms of office of federal officials and members of Congress.” Legislatures will also give “instructions” to the commissioners they nominate further restricting what measures they can entertain.

How do we know the delegates won’t go rogue? We don’t know, but history suggests they will abide by the restrictions placed upon them. During the 1776 Continental Congress and then again during the Constitutional Convention in 1787, some delegates returned to their legislatures to seek additional instructions because the motions exceeded their initial authority. Finally, if a commissioner failed to respect their limits, their state legislature could recall and replace them.

Morris claims the most likely commissioners will be the same politicians in Congress today who undermined federalism. There might be some, but state legislatures are more likely to send the Convention of States advocates from their own ranks. The convention will have no authority to award contracts, raise or spend money, or delegate power. They can only propose amendments and the commissioners will not be up for re-election. There are far fewer incentives for lobbyists to skew the process and less opportunity.

Ultimately, the greatest failsafe is ratification. For an amendment to be added to the Constitution, three-fourths of the state legislatures must vote to ratify. With 99 state house chambers in America, any 13 from different states could defeat an amendment.

In fact, ratification shows the fallacy of fear mongering about a runaway convention. If supporters of the “Newstates of America Constitution” enjoyed the political capital to ratify their new progressive nightmare of a constitution in 38 states, then they have more than enough clout to call a convention to propose their constitution. Or, they could just go directly to the states, ratify their new constitution, and nullify the Constitution in one step. This is as likely as the hypothetical Klan, NAZI, and biker gang constitution.

The progressives face insurmountable obstacles. Today, Republicans control the whole state government — governorship, state senate, and state house — in 23 states. Democrats control only seven. The GOP controls 33 state house chambers, 35 senate chambers, and the unicameral body in Nebraska.

Another valid question Morris raises is even if the Convention of States is successful, what will force the same politicians and bureaucrats to respect the new amendments when they violate the existing Constitution?

To date, most of the constitutional abuses are given cover by tortured court decisions, distorted interpretations of law, and other lawyerly tricks to obscure the actions of the offenders. However, cases like DC v. Heller and Citizens United v. FEC are recent examples where the political establishment accepted the constraints imposed by the Constitution. Convention of States advocates know the legal gimmicks activist judges use to circumvent original intent. Commissioners will frame amendments to counter the threat. As living authors, they will also be present, with their deliberation and debate notes, to oppose attempts by courts to re-define language opposite to the intended meaning.

The author only briefly considers the need for a convention to propose amendments. Our situation is perilous and our liberty hangs in the balance. Federalism is still the most effective system of representative self-government ever devised for securing liberty under the law, but our system was compromised slowly over many decades.

The carefully balanced powers providing checks on abuses were disrupted and the constraints were worn down by corruption. The federal government encroached and usurped state-level governance in almost every aspect of life. Congress created large bureaucracies and then shirked their legislative duty by giving bureaucrats the power of law via regulatory authority. The executive skirted ratification requirements by calling treaties ‘agreements,’ circumvented Congress by proclaiming presidential “actions”, and used political pressure to prejudice Supreme Court decisions.

While there are hazards in any course of action, there is also great risk in not acting. The concentration of power and corruption in the federal government threatens our liberty, security, and prosperity. The only solution is to divide, disperse, and properly balance power between the federal and state governments, the branches of the federal government, and to subordinate the Borg-like bureaucracies to accountable elected officials — in short, re-balance federalism.

How do opponents of the Convention of States, like Morris, propose to reverse the decay and confront the corruption? Their answer is to follow the same playbook — elect ‘better’ candidates and hold them accountable. After 80 years of failure, when people want to try the same failed strategy in the same corrupt system, with the same corrupt media, but promising different results, we need to ask: do they really want to solve the problem?

Advocates of the Convention of States offer a new strategy to re-establish equilibrium within our federal system. Texas Governor Greg Abbott proposed the Texas Plan to “restore the rule of law.” The Texas Plan includes language to prohibit Congress from regulating activity wholly within one state, requiring a balanced budget, revoking authority for bureaucrats to create federal law or pre-empt state law, and several other proposals to decentralize and disperse power. The changes will limit the ability of federal politicians and bureaucrats to engage in nefarious activities. If they persist, state legislatures will possess the authority to check their actions. There are still other good ideas and all of them will be analyzed and carefully considered at both the Convention of States and, if endorsed, in the subsequent ratification campaigns.

Any discussion of amending the Constitution warrants sober deliberation and respectful debate. Most advocates for a Convention of States welcome an open and civil dialogue on the hazards, challenges, opportunities, and benefits of a Convention of States to propose amendments.

Brian T. Carter

Brian is computer network systems engineer, commercial rated pilot, and writer who spent the last 12 years working overseas in hostile environments. He makes his home in Central Texas, but has traveled and lived abroad off and on since he was 11 years old. He lived, attended school, or worked in Latin America, East and Southeast Asia, the Middle East, and Africa.

17 Comments
  1. Wonderful article. I volunteer for Convention of States and believe it is our last hope. We must have it. There is no danger in a runaway convention. The convention’s scope is limited to the application. Any action beyond that scope is void. Any amendments considered must be approved by a majority of the states represented.Delegates are controlled by their state legislatures. Amendments proposed must be ratified by 38 states to be valid; 13 states can defeat any amendment.

    The Founders recognized that there would be a need to amend the new Constitution, and wisely chose not to leave the matter solely to Congress. Thank you for this.

  2. I started researching the Article V process some months ago to make sure I was not being bamboozled. I wish there had been more articles like this one that were readily available then. Perhaps my research could have finished quicker.

  3. A brilliant article! Here’s what we can do to help: Check out the website, sign the online petition that goes to your state legislators, and volunteer to help patriots throughout the nation. There are many legislative districts that still need District Captains within states. Take that on whether you live in a particular district or not. There are wonderful Tuesday evening online training calls (9:00 PM Eastern Time; they’re also recorded for watching at your convenience) that have been enormously helpful to me. They’re informative and inspirational. You’re needed on deck! http://www.conventionofstates.com

  4. Wow. Nailed it. Status quo is a far more dangerous path than letting the states take their constitutional role in reining in federal overreach. Like you point out there are so many precautions involved in this process including criminal penalties for commissioners violating state instructions. 75 or more out of 99 state houses are required to approve EACH PROPOSAL.

  5. A really well composed article. I’ve been a volunteer for a COS for over a year and if that were not the case, this article would have recruited me. I read Ms. Morris’s article (and left a comment) and noted that she probably is satisfied with the establishment in DC and that if there was more conservative thought it would be an ideal environment. The idea of a COS seemed to be a direct threat to the status quo and therefore must be defeated. To feel that all the abuses of the Feds can be straightened out by electing more conservatives flies in the face of what happened after the 2010, 12 and 14 mid-term elections. The COS is our last best chance to restore the balance of power envisioned by the Framers. Learn more at conventionofstates.com and sign the petition.

  6. Great article about a much needed process to rein in our Federal government… its out of control and this is what we need to do: The time is NOW…Its time WE THE PEOPLE stood up…if not us, then who?……..
    The only place you will find a solution as big as the problem? Here… An Article V
    Convention of States it may be a long shot, but it also is our only shot to
    peaceably & constitutionally restore our Constitution….COS Project has 3
    SPECIFIC areas for state legislators to focus on:

    (a) Impose fiscal restraints on the Federal Government.
    (b) Limit the power and jurisdiction of the Federal Government.
    (c) Limit the terms of office for federal officials and members of Congress.

    These mechanisms will allow the States to reign in the corrupt political system
    with term limits and balance budget requirements. 38 states (both houses) are
    required for ratification. Inversely 13 state houses can block any proposal.

    Watch this video of Sen. Mike Lee of Utah explain why we need to do this: http://dailysignal.com/2016/09
    Visit here to learn more, sign the petition, and volunteer:
    http://www.cosaction.com/?recruiter_id=1636326

  7. This is an excellent article! Article V was put into our Constitution for just the problem we have today – a corrupt, out-of-control Federal Government. The Convention of States Project is designed to LIMIT the power and jurisdiction of the Federal Government, impose term limits for officials and members of Congress, and impose fiscal restraints. Now’s the time to put an end to the out-of-control Federal Government. You can be a part of this historic movement by signing the Convention of States petition here: Sign the COS Petition!

  8. This video really helps clarify some of the points so well-made here.

    https://www.youtube.com/watch?v=dEcly3RF3-U&index=6&list=PLnCgQgjEmf7Q5sfQrCbu4A-Ih2COc7la3

    The Article V Convention of States provision is not an opening for a “constitutional convention,” meaning it is not a provision to totally scrap the constitution and start over. Explicitly, Article V provides the opportunity for the states to force a convention of states to “propose amendments,” not to propose new constitutions. Furthermore the COS Project has imposed self-limitation upon itself by strictly limiting the topics of the proposed COS to these three areas:

    Imposing fiscal restraints on the federal government
    Imposing term limits on federal officials
    Limiting the size and scope of the federal government

    The Article V Convention of States holds its purpose to restore constitutional republicanism and prevent the overgrown administrative state from growing even more powerful.

  9. I also support Convention of States. Even with a Trump victory and the Republicans controlling the House and Senate and up to four Supreme Court Justices up for grabs, I still think we should go for COS.

    As you know, being nominated doesn’t mean that they will do the right thing once on the court.

    FACT:

    6 of the 9 Supreme Court Justices on the court when Roe vs. Wade was decided were Republican appointed.

    Only 1 out of 3 of the Justices Reagan appointed turned out to be originalists.

    Only 1 out of 2 of George H W’s nominees turned out to be an originalist.

    None of George W’s nominees turned out to be originalists.

  10. Congress has, by and large, abdicated their responsibilities to the executive branch under the cloak of “efficiency” – they’ve created a largely uncontrolled branch (the bureaucracy) without necessary accountability and then turned a blind eye to the excesses and abuses. The founding fathers, in their infinite wisdom foresaw this possibility by the establishment of Article V. While the good news (GOP “control”) of all 3 branches, there are still way too many RINO’s clinging to their seats of power! We can’t depend on them to voluntarily to change the status quo – much less willingly cede their hard-fought gains. We must force at least two initiatives: 1.) balanced budget amendment; and, 2.) term limits.

  11. Based on my research I think that a Convention of States has been well crafted and is exactly what we need to counter our
    “run away government”

  12. In no way do I claim to be a Constitutional scholar. I am a simple man with simple ideas and simple questions. With that being said, I wish to propose a simple question now.

    Both Ms. Morris and Senator McConnell make the statement “we already have term limits, they are called elections”. While I would agree in principal with this assertion, for all practical purposes this is not a valid argument.

    My reason for this assertion? If elections are to be equated with term limits then why is it that, after the four term presidency of Franklin D. Roosevelt, suddenly candidates for election to Congress decided they must campaign on and subsequently propose an amendment to the Constitution limiting an individual to two terms as President?

    Was this done in fear that a person could essentially become elevated to some perceived level of “nobility” yet still avoid the restrictions in the Constitution preventing any person from accepting or assuming a title of Nobility by retaining the title of President? Even so, as noted in an essay on the XXII amendment found at http://www.heritage.org/constitution/#!/amendments/22/essays/184/presidential-term-limit,
    There are several points of law that have yet to be considered or contested in the courts.

    But I digress. Returning to my original thesis (if I may be so bold as to use that term) I will again ask my question. If Congress “already has term limits, they are called elections” then why would this same assertion not also apply to the office of President thus rendering the XXII Amendment moot?

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