The Right Way and Wrong Way to Limit an Article V Convention

This is an article I wrote in The Constitution Club:

A primary concern of the American people about the Article V Convention is the fear of the runaway convention. To prevent the convention from becoming a runaway, it must be limited in such a way that the people have confidence that the Convention will not produce undesirable results. There are two known ways to limit an Article V amendment convention, one that is in keeping with the letter and intent of the Constitution, and one that is not. The convention can be limited by withholding the States’ application until ratification of a specific change is guaranteed, or it can be limited by controlling the creation of the proposed amendment. The ratification method can be done in keeping with the Constitution. The creation method cannot.

To help understand why it cannot be done by controlling creation, let’s review Madison’s notes on Article V from the Grand Convention for September 15, 1787.

Art. V. “The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures 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 1808 shall in any manner affect the 1 & 4 clauses in the 9. section of article 1”
Mr. SHERMAN expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.

Col: MASON thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.

Mr. Govr. MORRIS & Mr. GERRY moved to amend the article so as to require a Convention on application of 2/3 of the Sts.

Mr. MADISON did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided.

The motion of Mr. Govr. MORRIS & Mr. GERRY was agreed to nem: con:

This section of notes begins with a draft version of Article V. In its earlier design, the draft has the States applying for specific amendments directly: “… on the application of two thirds of the Legislatures of the several States shall propose amendments to this Constitution …”

Sherman was concerned that under this rule a majority of States might use their elective power to abuse States in the minority. He implied the possibility of removing from the draft the power of the States to amend the Constitution altogether.

Mason countered the implication by insisting that a means be retained to make necessary amendments to the Constitution in the event that Congress would not.

Morris and Gerry suggested as an alternative the use of a convention. This would remove the States’ power to create amendments directly, while retaining the ability to rely on something other than Congress or the States to amend the Constitution. The convention would act as a buffer to help mitigate the problem of majority States from abusing minorities. It reduced the potential abuse of power by the States, while retaining the ability to address constitutional issues not addressed by an irresponsible and recalcitrant Congress.

The Framers intended that the States not have the right to produce amendments themselves, while still requiring the production of proposed amendments. They required that Congress call the Convention, which implies that the Convention operates under agency to the recalcitrant Congress, not the potentially bullying States. They also removed the power of drafting from Congress. Congress can not to draft the necessary amendment themselves. You cannot compel a recalcitrant Congress to draft an undesired amendment. There is no telling what kind of nonsense they might put in it. Or they might simply refuse to do so.

By the intention of the Framer’s design, and by the writing of Article V, the Constitution does not empower the States or the Legislature to direct the actions of the Convention. As Madison commented, the details of the Convention were to be worked out when the need for a Convention arose. The States and Congress are free to give suggestions to the Convention, but the Convention is free to ignore them.

So the wrong way to limit the Convention is by trying to misinterpret the wording the Constitution in such a way that the States or Congress have the power to define the product or process of the Convention.

Congress calls the Convention for Proposing Amendments, so they appear to have some leeway in defining its form. Looking at an extreme case, if Congress assigned two freelance lawyers, who were chosen because of their antagonism to the States’ desired change, to sit in a room for an hour and draft a blatantly unratifiable proposed amendment, Congress has called the Convention and has fulfilled its obligation under Article V. As a practical political matter, if two thirds of the States demand an action as serious as the Convention, Congress would be highly likely to respond in a more appropriate manner. Although, if the States ever were to apply for an Amendment Convention, the States would be wise to be watchful for shenanigans from Congress in the form of manipulating the creation of the Convention to manipulate the outcome. The politicians running Congress are imfamous for such behavior. The States would want to build into their application some mechanism for ensuring that such actions are policed.

If the wrong way to limit the Convention is by having the States or Congress control its product, what is the right way? In brief, the States can withhold submitting an Application for the Convention until after the States have secured confidence that the State legislatures and the Ratification Conventions will only ratify a desired amendment that meets clear and detailed requirements. This leaves the Convention free to act as it deems necessary, and gives the Convention the foreknowledge that its product will only be ratified if it meets those secured requirements.

There are a number of advantages and caveats to limitation by ratification.

For example, if the Convention after studying the desired amendment determines that it is unreasonable in its character, the Convention can negate the application by producing an amendment that the States will not ratify. It can produce a blank, or “null”, proposal. This power fulfills the Framers intent that the Convention act as a buffer to prevent a bullying majority of States from abusing States in the minority.

Among the caveats: The States must avoid making agreements with each other while securing confidence in the application, since that would be a violation of the Constitution. The Constitution forbids the States from making those kinds of agreements unless they get Congresses consent, and in the case of the Convention we can safely assume that Congess is hostile to the desired change, so its consent must be removed from the equation.

Also, the States must prevent Congress from intentionally calling a Convention in a form that will prevent needed amendments from being produced. After Congress gets wind of an imminent application, Congress may attempt to write its own watered down version of the proposed change, containing loopholes to prevent the parties from losing power. The States must prevent Congress from committing such an atrocious act.

The States and the public must prevent political machinations from influencing the process to as great a degree as possible; they must remove partisanship from the process.

One of the keys to the ratification method of limitation is a properly formed pre-convention. The pre-convention must define the requirements and limits of the desired change and the requirements, as well as set the stage for the process, and ensure that proper process is followed.

For example, the pre-convention must set up the process for creating the Ratification Conventions. The State legislatures are inappropriate agents for doing that. While it would perhaps be in keeping with the letter of the Constitution for the legislatures to set up the Ratification Conventions, doing so would defeat the purpose in Article V of giving Congress a choice between ratification by Ratification Conventions or ratification by the State legislatures. Just as Congress can affect the Convention by creating it with designs on influencing it, so can the State legislatures affect the Ratification Conventions by creating them with similar designs. To help ensure the confidence and support of the people, the State legislatures must not set up the Ratification Conventions.

The pre-convention must referee the activities of the various actors. It must ensure that the process is as non-partisan as reasonably possible. Not bi-partisan, but non-partisan. A bi-partisan Convention process would be a disaster. For our purposes in this discussion, the two dominant parties, the Democrats and Republicans, are the government. The parties are not the solution to the problem. The parties are the problem. The desired amendment would most certainly be a repair to government problems, so it would have a negative impact on the power of the parties, so all of the political parties must be kept at arm’s length from the process of repair to prevent them from sabotaging it. The trust of the people must come before the desires of the partisans to retain power.

The pre-convention should be made up of persons who do not receive compensation from the State or Federal governments, and who are not especially involved in partisan politics. State and Federal employees could be considered agents representing the States or the Federal government, so any work they were involved in could be considered unconstitutional. Any involvement in partisanship which involves the incurrance of partisan political debts or obligations must disqualify a person from direct involvement in the pre-convention. Non-partisan elected officers such as city and county judges, sheriffs and police chiefs, who do not work directly for the State or Federal government, could be candidates for the pre-convention. Just as the selection of jurors for a trial must exclude persons with bias, so must the selection of members to the pre-convention be exclusive. To secure the confidence of the people, the objectivity of the persons in the pre-convention must be pristine.

The pre-convention must be free of associations with persons and organizations who engender mistrust from segments of the public. Any involvement by persons such as George Soros or the Koch brothers would give propagandists leverage to sway the public against the products of the pre-convention. Any involvement by outside political groups such as the Goldwater Foundation or the Occupy Wall Street groups would do likewise. All such persons and groups must be kept at arm’s length from the pre-convention.

Advice from non-neutral parties should be welcome. Direct involvement should not.

The pre-convention must present the case for change and demonstrate the security of a specific change, and do so in such a way that the public can be confident that the Convention will not go out of control.

I could go on in greater detail about the right way to make the Article V Convention happen (and I have done so elsewhere), but what I have written here makes the case I think that there is a right way and wrong way to implement a limited Article V Convention.

Those persons pressing for the unconstitutional method, though they may be nice, well intentioned people, are attempting to subvert the Constitution. In short, they are trying to overthrow the government. Their actions are offensive enough that they could even be considered criminal.

Publius wrote in the Federalist Papers about two problems with public politics. One is the damage caused by popular rages (rage as in fads in popular thought). The other problem is the fact that many, if not most, damaging civil actions are done by nice people with good intentions. Such people do not commit acts of great harm because they believe they are villians, and it is their obligation as villains to commit atrocities. Rather, they act harmfully because they believe with zeal that they are humble heroes doing good deeds; but their ideas are irrational, sold to them by confidence salesmen as solutions to crises real or imagined, natural or manufactured. It is the people’s awareness of the existence of these confidence salesmen that makes us wary of the Article V Convention. The American people will not allow the Convention to be held until our healthy concern is addressed. I outlined some steps for making that happen in this article.


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