Challenging the Call for Constitutional Amendments Convention

In the spirit of debate, here’s my response to Rob Natelson’s recent op-ed advocating for the calling of a convention to propose amendments to the Constitution.
Challenging the Call for Constitutional Amendments Convention
Sean Locke Photography/Shutterstock
Joe Wolverton
Updated:
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Commentary
In responding to Rob Natelson’s recent op-ed advocating for the calling of a convention to propose amendments to the Constitution, it’s imperative to address and clarify several historical and constitutional misconceptions presented in his argument.

Mr. Natelson claims that “both the historical record and the Supreme Court tell us that a ‘Convention for proposing Amendments’ is a convention of the states.” However, this claim lacks specific references either from the historical record or Supreme Court rulings to substantiate such a claim. This absence of citation is notable, especially considering the weight of the assertion.

For the sake of constitutional accuracy, it’s more appropriate to refer to such a gathering using the terminology found in the Constitution itself: “a convention for proposing amendments.” The phrase “convention of states” is not found in the framers’ original language and is conspicuously absent from Article V of the Constitution. Resorting to terminology not used by the framers or in the Constitution could lead to a misunderstanding of their intentions. It’s vital to use the language that the framers carefully chose to articulate their ideas accurately.

Turning to Article V itself, the text reads:

“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 ...”

Near the beginning of his editorial, Mr. Natelson asserts that a convention is a mechanism to bypass Congress. This statement ignores this substantial role assigned to Congress in Article V.

Simply reading the text of Article V illustrates the significant role that Congress plays in the amendment process. Not only does Congress call the convention upon the application of the state legislatures, but it also determines the mode of ratification for any proposed amendments. This involvement of Congress at both the beginning and end of the process contradicts the idea of the convention serving as a means to circumvent federal authority.

It’s true that if two-thirds of the state legislatures apply for a convention then Congress must call for it, but this is Congress we’re talking about. This process would be novel, and surely several savvy congressmen would recognize the potential power of such a convention and would use every available means (constitutional and unconstitutional) to drag their feet and put one hurdle after another in the path toward calling for a convention.

It’s baffling how Mr. Natelson and the Convention of States Action (COS)—the primary proponent of a convention for proposing amendments—can so clearly see such tyrannical tendencies in Congress when it suits their (COS’s) purposes, yet be so blind to how those same tendencies would work against the calling of a convention for proposing amendments.

Additionally, the very nature of a qualifying state convention application is undefined in the Constitution, and COS’s consistent claim that these applications can limit the scope of a convention for proposing amendments isn’t supported by the Constitution and is refuted by many constitutional scholars, including Duke Law School professor Walter E. Dellinger, who wrote in the Yale Law Journal:

“[A]ny state convention applications that are premised on the erroneous view that a convention can be limited in advance must be treated by Congress as invalid.”

That’s a mortal blow to Mr. Natelson’s and COS’s entire endeavor, as limiting the scope of the convention is the foundation of their appeal to the people, particularly people wary of the dangers posed by a convention for proposing amendments.

Mr. Natelson’s next point—that the “federal government is a mess”—is something few would dispute. However, the assertion that an Article V convention for proposing amendments is the only solution to this mess is simplistic and self-serving. The untested, unpredictable, and undefined nature of such a convention could result in unintended consequences, potentially leaving us with a greater constitutional crisis than we currently face. What it would take to clean up that mess is something never addressed by Mr. Natelson or COS.

Mr. Natelson’s article also claimed that “the people—acting through their state legislatures—could force a convention.”

If the people possess as much political power as Mr. Natelson suggests, why have we not seen more effective use of this power at the state level? The records of the state ratification conventions, the Tenth Amendment, the Kentucky and Virginia Resolutions, and Federalist Papers 45, 46, and 78 clearly outline the states’ obligation to check federal overreach. Yet, this responsibility has been nearly totally neglected. Could this be due, in part, to the financial dependencies that states have on the federal government?

Moreover, why have we not “forced” our state legislatures to refuse to cooperate, carry out, fund, or support unconstitutional acts of the federal government, the very acts that COS claims can only be undone by a constitutional convention?

Those acts would be so much easier and so much less risky than a convention for proposing amendments, yet we haven’t been able to “force” our state lawmakers to do them!

Regarding the concern of a runaway convention, Mr. Natelson dismisses the potential for such an outcome. However, historical precedent suggests otherwise. The 1787 Constitutional Convention, initially called by Congress for the “sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of government & the preservation of the Union.” [emphasis added]
Regardless of this very clear and limited authority, the Convention of 1787 ultimately resulted in the creation of an entirely new Constitution that in no way resembled the then-existing and legally binding Constitution, the Articles of Confederation, and the congressional restriction on the authority of the convention was completely disregarded from the very first day of debate. This historical fact demonstrates the inherent risk associated with a convention exceeding its initial mandate.

And that was with men the caliber of James Madison and George Washington serving as delegates. Who do you think California and Illinois and New York would send as delegates? It certainly wouldn’t be the hand-picked Republican supporters of the COS agenda that attended COS’s simulated convention in Williamsburg, that’s for sure.

Later, Mr. Natelson claims that “like diplomats, convention commissioners are restricted by topics and instructions specified in advance.”

Mr. Natelson admits that Congress is out of control. Congress is bound by pre-existing rules and prohibited from considering issues not delegated to it in the Constitution. It irrefutably ignores those pre-existing rules and undeniably disregards those prohibitions on its authority every day.

Why would delegates to a convention for proposing amendments such as the one advocated by COS be any different? Why would those delegates be more inclined to adhere to pre-existing rules and limits on which issues it can consider than congressmen are? The simple answer is: they wouldn’t.

Mr. Natelson correctly criticizes the role played by a runaway Congress—a convention of states of sorts—in doing so much damage to our country, yet he denies that a convention to propose amendments would ever exceed its authority and do similar damage, only of a more lasting sort, to our Constitution. That is naive and illogical.

Next, Mr. Natelson describes convention delegates as “officials acting pursuant to legislative authorization.”

None of that is provided for by Article V. If such things were so it would make Mr. Natelson’s case much stronger—but they are simply fictitious promises and unreliable hopes. I don’t think Americans who revere our Constitution and the Founding Fathers would want to risk that document on the unconstitutional and unsubstantiated hopes of convention promoters.

Finally, in his editorial, Mr. Natelson writes: “Anything the convention recommends must be approved by three-fourths of the states. This ensures that any proposed amendments meet the overwhelming approval of the American people.”

Here’s perhaps the plainest and most potent part of my response, and it’s something Mr. Natelson and other supporters of a convention for proposing amendments won’t dare address because it would pull back the curtain on the Wizard of COS:

Even if 100 percent of the American people approved of a proposed amendment, that amendment would not become part of the Constitution unless three-fourths of the ratifying conventions or state legislatures approved. Period. Read that again. No matter how “the people” feel about the product of a convention, even if such a proposal enjoyed the “overwhelming approval of the American people”—the proposals would never be anything more than that unless three-fourths of ratifying conventions or state legislatures approve them, as well.

Yes, the people can vote for representatives they hope will carry out their political will, but look how that’s worked out for us in Congress!

Finally, I will agree with Mr. Natelson that the state legislatures are our best tactic for forcing the federal beast back inside its constitutional cage and for undoing so much of the damage—economic and otherwise—that has been done by an out-of-control federal government.

Where we part company, however, is the suggestion that state legislators should ignore the oath they are required to swear under Article VI to support the Constitution and instead focus on trying to call a convention for proposing amendments, a process that even COS president Mark Meckler admits could take 25 years.
State legislators can begin today to follow the counsel given by James Madison in Federalist 46 and again in the Virginia Resolution of 1799 to refuse to cooperate with any act of the federal government that exceeds its constitutional authority.

We don’t have 25 years to wait for state legislators to act in defense of the Constitution. But I don’t think we should try to force them to use a weapon so dangerous and so incorrectly defined by its supporters that it could destroy us, especially since there are so many weapons that are, as Madison described, “powerful and at hand,” sitting idle in the arsenal ready to be deployed against the forces of federal despotism. Let’s hope it’s not too late.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Joe Wolverton
Joe Wolverton
Author
Joe Wolverton, II, J.D. is The John Birch Society’s Constitutional Law Scholar, a former constitutional lawyer, and the author of three books: “The Real James Madison,” “What Degree of Madness?: Madison’s Method to Make America STATES Again,” and “The Founders’ Recipe,” an introduction to the writings of the 37 authors most often quoted by the Founding Generation.
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