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.
“[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 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!
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:
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.
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.