As our nation continues to depart from its founding principles, conservatives are desperately searching for strategies to re-establish the checks and balances designed to prevent government tyranny. As specific problems are identified, solutions are proposed. If professional politicians are the problem, term limits will get rid of them. If government spending is the problem, a balanced budget is the answer. If government overreach is the problem, defund and close government agencies. If moral decay is the issue, legislate against it.
The Convention of States (COS) agenda promises to resolve all these problems. Their plan is to invoke Article V of the Constitution in which thirty-four states can petition Congress to call a “convention of states” to propose constitutional amendments. They contend that each state delegation is restricted to proposing only amendments specified in the state’s petition. Common suggested amendments are Congressional Term Limits and a Balanced Budget Amendment. COS proponents claim that the states will control all aspects of the convention and any amendments proposed would still have to be ratified by ¾ of the states to become part of the Constitution. They claim the process is legal, constitutional, and a perfectly foolproof and safe way to reestablish constitutional rule.
I vehemently disagree. The Article V Convention of States is a Trojan Horse.
Article V of the Constitution is a 143-word run-on sentence that should make English teachers gasp and cringe. An English teacher so appalled, however, would probably have taught the class how to parse a sentence to understand who does what to whom. To parse a sentence one must find the subject, verb, and object of the sentence and temporarily put all the rest aside.
Here is the full text of Article V of the US Constitution with highlights for further discussion:
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.
The simple declarative sentence reads as follows:
The Congress shall propose amendments to this Constitution or shall call a convention for proposing amendments.
Congress, it appears, can take one of two actions with certain triggers:
- Congress Shall Propose Amendments itself
Trigger: 2/3 of both houses deem it necessary - Congress shall call a convention for proposing amendments
Trigger: Application of the Legislatures of two-thirds of the several states; i.e. 34 states
Option 2 is what the COS folks are talking about. Based just on this part of Article V, here are the obvious sources of risk:
“Congress shall call a convention”
- call a Convention – not call a Convention of States
- “Congress shall call a convention” means that congress calls the convention, determines the agenda, chooses the delegates, and defines the rules of the convention
Article V also specifies the ratification process which contains additional obvious risks. Amendments become part of the 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”. Once again, Congress controls the ratification process.
The COS promoters claim that the process is safe as the states would control the entire process including making the rules, choosing delegates, and creating the convention agenda. They also claim that the rules could not be changed by the convention itself once it is underway. History proves them wrong.
Contrary to the COS narrative, our Constitution was written by a “runaway” convention, even though it turned out well. After the War of Independence, our country was governed by the Articles of Confederation, which created a central government that was too weak to enforce unified action even when essential. To remedy those deficiencies, a convention was called with only one specific purpose – to amend the Articles of Confederation. According to rules, amending the Articles required ratification of any changes by all thirteen states.
The convention convened in Philadelphia, but delegations from only twelve states were present. Rhode Island refused to attend. Disregarding the rules, the delegates decided to discard the Articles of Confederation entirely and write a new Constitution. Instead of requiring agreement by all thirteen states, the new Constitution became law of the land when ratified by only nine of the thirteen states.
The convention that created our Constitution defied and broke every rule under which it was called. It discarded the Articles of Confederation entirely instead of just amending it and changed the ratification requirements from all thirteen states to just nine. By definition, that was a runaway convention.
Commentary by Phyllis Schlafly on the Article V ConCon
Whether you call it a “Convention of States,” a “Constitutional Convention,” or a “ConCon,” the outcome is the same. It would open up our beloved founding document to attack from all kinds of special interest groups with intentions far less noble than the Founding Fathers.
Here are three concrete reasons Phyllis Schlafly opposed an Article V convention:
- Congress has ultimate control over the process. The Congressional Research Service confirms that Congress will call the convention, determine the agenda, choose the delegates, and define the rules of the convention.
- Activist judges will control the outcome of a convention. The American Bar Association acknowledged that a convention under Article V, like every other part of our Constitution, will be subject to judicial review. With just one lawsuit filed by either liberals or conservatives, this would give unelected judges the chance to control the actual wording of the Constitution through judicial fiat.
- The Constitution is not the problem. Everyone acknowledges that the real problem with our federal government is not the powers given to it by the Constitution, but the powers the government has usurped outside the bounds placed on it by the Constitution. Why would anyone think that the federal government will suddenly start obeying the rules when we write more of them?
Many other notable constitutional scholars agreed with her. Chief Justice Warren Burger said, “A Constitutional Convention today would be a free-for-all for special interest groups, television coverage, and press speculation.”
Justice Antonin Scalia avidly opposed an Article V convention. He called it a “horrible idea.”
Even current proponents of an Article V ConCon like Mark Meckler admit that having one convention will open the door to many more. “There is no way to prevent the cycle [of multiple conventions] from happening because the cycle of it is the cycle of human nature.”
The Convention of States agenda is an organized attack on the Constitution. It is a wolf in sheep’s clothing, enlisting the support of conservatives by promising that a Convention of States will give us the tools we need to re-establish our constitutional republic.
In reality, the Constitution of States program is a dangerous tool that uses our patriotic hearts and desires to bring the fox into the henhouse.
Suddenly, this has become a critically important issue for citizens of North Carolina. In our state, the Republicans in the state House of Representatives voted to call for a Convention of States. The Senate has not voted yet, but they could in the short session that starts after the primary on May 17.
It is time to actively call your senators in Raleigh and urge them to vote against the COS resolution and explain why that is so important.
Resist Tyranny and Trust in Freedom!
This is quite possibly the best breakdown of the ConCon con that I have seen. A very straight forward, logical argument.
Well intentioned Conservatives have fallen for this trap, but if something sounds too good to be true, it probably is.
Our problem isn’t the Constitution, it’s politicians and bureaucrats who refuse to follow it. Changing it really accomplishes nothing, but it puts the very fabric of our nation at risk if those changes don’t go as planned.
I agree with a lot of what you write, but in this case, you are wrong. The language in the alternative clause you point out uses “shall”, meaning Congress is compelled to call a convention. It had already been stated that 2/3 of the states “petitioned” Congress thereby making it a Convention of States. None of that language puts Congress in charge of said convention, only that it shall call one on the petition of 2/3 of states. If it was to simply rubber stamp Congress authority, why would they deem to include this.
You include Phyllis Schlafly comments in your argument. I have read other articles questioning and pointing out her motives as representing those who profit from maintaining the status quo. Maybe not the best choice to bolster your arguments.
It is NOT a Constitutional Convention where the Constitution can be rewritten or abolished. The language is specific, “to propose amendments”. Conflating the one with the other is misinterpreting the language and intent of the Framers and a tactic of status quo politicians. “Activist judges” can hold no power over the convention, except that all amendments must pass Constitutional muster.
You state it is a “collectivist” (a fear mongering word.) trojan horse. To do what? What do you call what is going on now? You say that the Fed government wouldn’t have to heed those amendments any more than they do the current Constitution? So, what is your alternative? We would at least have the specific constraints on the Feds in the Constitution. The Framers specified how Congress can propose and pass amendments to the Constitution and gave the states an avenue to do the same (without Congressional approval). Are there potential pitfalls involved? Of course, but a runaway Constitutional Convention is not one of them; and to trust to the establishment politicians to make things better when the majority were (at least) complicit in the collectivism running rampant today would be extremely foolish when we have the tool given to us.
While I agree that there is a risk to a convention of states. But the detractors -most of whom hold some position of power – would have us ignore the risk of what happens if we don’t have a convention of states. We are nearing the point of no return. Our federal government is totally out of control of the states and the voters, for whom they are supposed to be responsible. They have usurped so much un-constitutional power that the states and the people can no longer depend on the current system to protect those to whom they are supposed to be responsible.
Think of it this way. Our beloved USA, our Constitution, and our very freedoms are effectively a baby in a burning, but not totally engulfed building. We are the mother, outside the building. Do we stand idly by and allow the baby to die, for fear of our own lives, when there is still time? Or, do we risk everything, to run inside and try to save the baby, before it becomes totally engulfed and rescue it impossible? Well, in this case, the baby is our FREEDOM, our LIBERTY, and our RIGHTS. So by not RISKING IT ALL, with a convention of states, we are GIVING IT ALL UP out of nothing more than simple FEAR.
I personally refuse to live in fear. I’ve jumped out of airplanes, flown hang gliders and ultralights, scuba dived to 320 feet, driven a car at 200mph and a motorcycle at 100mph and I did all those things for no more than a momentary adrenaline rush. But a convention of states is about my god-given freedoms and liberties, for the rest of my life. When I was younger, I chose to do everything to insure that my parachute would open and then jumped out of that plane, risking dying in an instant if the chute didn’t open, rather than choose the half-a-life of possibly living to old age and never knowing the freedom of free-fall.
Everything in life is CHOICES and RISKS. As with skydiving, I CHOOSE to push for the RISK of a constitutional convention, rather than the CERTAINTY of continuing to do the same things that got us into this situation. We cannot depend on the federal government to give up, on their own, the power they have usurped. Like Einstein said, “Insanity is doing the same thing over and over again and expecting different results.” Continuing to depend on a broken election system, a broken Congress, and broken Courts, to change the system, is a perfect example of Einstein’s definition of insanity.
Moreover, those who oppose a constitutional convention offer NO OTHER OPTION than to continue the insanity of doing the same thing over and over and expecting a different result. They just oppose a convention. Could it be that they are invested in the current system?
The point is that doing nothing INSURES that things will continue to get worse and that we or our children will eventually live under tyranny.
I CHOOSE the RISK of a run-away convention, over the absolute CERTAINTY of tyranny that would ensue, if we continue the “insanity” of doing the same things that have not worked in the past.
Dr. Eichenbaum,
Respectfully, I disagree with your interpretation of Article V. While I would almost always agree with the opinion of the late Phyllis Schlafly, on this issue I believe she was terribly wrong. The idea of a “runaway convention” is preposterous on closer inspection. Please bear with me.
Article V is interpreted to say that amendments may be put forth for debate by either 2/3 of Congress OR 2/3 of the state legislatures. The ratification process is the same as has always been, that is 3/4 of the state legislatures are required for ratification. In other words, Congress is completely removed from the amendment process by invoking the phrase by empowering state legislatures instead. Otherwise it’s the same process that historically has been used to amend the constitution of which only 17 have been ratified since the Bill of Rights. Organizing the state legislatures would be an additional hurdle to the already high bar of the amendment process. Within either process, 2/3 of Congress, OR 2/3 of the state legislatures, must agree to the precise wording of a proposed amendment before it can ever be subjected to a ratification vote.
It would be something short of a miracle to have just a single amendment ratified that was proposed by the states. While Congress term limited the Executive branch after FDR ran 4 terms, Congress would never term limit itself, which is why we now have members of Congress with half century careers. Biden is a prime example of what happens when you have people leading the country that have never experienced anything outside of politics their entire adult life. The only way to break this cycle is for the states to step in to take control of the federal government just as George Mason said would be necessary when the federal government no longer serves its constituents.
I hope you will read about the origin of the phrase inserted into Article V which was insisted upon by George Mason and his reasoning during the ratification. The history is well accounted for in “Liberty Amendments” by Mark Levin and at this link: https://amac.us/history-article-v-reclaiming-heritage-1/
Respectfully,
I always appreciate commentary, pro or con, about important subjects like the COS. I know that you and your COS activists are passionate about saving our constitutional republic, and I agree that term limits for Congress is an excellent idea. In fact, that was one of my platform planks when I ran for Congress in NC-11 in 2010.
You and I disagree on the method for achieving that goal.
We can debate honestly your objections to my article, but I am afraid you are missing the real issues here that Phyllis Schlafly spelled out so well in her numerous articles against your plan.
We are not living in colonial times when communication was face to face and transportation was only as fast as horses and sailboats could travel. We live in an era when communication is instantaneous and travel is measured in minutes and hours instead of days and weeks. We are also living in an era of legal activism and judicial tyranny that controls the actions of governments and individuals.
Please review these two paragraphs from my article:
Activist judges control the outcome of a convention. The American Bar Association acknowledged that a convention under Article V, like every other part of our Constitution, will be subject to judicial review. With just one lawsuit filed by either liberals or conservatives, this would give unelected judges the chance to control the actual wording of the Constitution through judicial fiat.
Many other notable constitutional scholars agreed with her. Chief Justice Warren Burger said, “A Constitutional Convention today would be a free-for-all for special interest groups, television coverage, and press speculation.”
George Soros is the information source for all national (and international) media through his control/ownership of Media Matters which feeds fake news and propaganda to its multiple outlets. The public has no true independent source for truth. Social media can create crowds and protests instantaneously filled with agitated young people who don’t even understand why they are there. The federal court system is thoroughly corrupt, and the Supreme Court is intent on legislating far beyond its constitutional authority.
That is the danger of the Article V ConCon, even if you are right about everything else. The enemies of our constitutional republic will take over the process from outside the convention hall, and our freedom will be gone forever.
A great fictional account of this reality can be found in the third book of Matt Bracken’s “Enemies Foreign and Domestic” trilogy. Bracken fictionalized the exact scenario that I just described.
Thank you for listening.
Dr. Dan
As A COS Volunteer in Murphy since 2016, I have heard everything that Dr Eichenbaum had said against an Article V resolution (HJR233).
Col George Mason of Virginia and others drafting our Constitution inserted Article V specifically to prevent the Government from growing indifference like it has in the last Century.
The COS Project is The Only Solution as big as The Problem of a Runaway Legislative Branch and a Tone Deaf Judiciary System perpetuating Disinterested Tyranny upon We The People; who are tasked to reform said Government by law.
As a Father and USAF veteran I will not cease in this effort until this resolution (HR233) is passed in Raleigh this year or any year in the future.