IS IT SAFE?

       Safeguards in the Constitution

• 2/3 of the States (34 states) must call for an Article V Convention before one is called. Thirty-four States is a high bar ensuring that only issues with widespread support will inspire enough action to produce an Article V Convention.
  
  
• The Article V Convention is limited to the Convention topic specified by the states that called for it. Thirty-four states must pass resolutions calling for the exact same convention topic in order for a Convention to be called and that Convention is then limited to the agreed upon topic. Amendment proposals on any other topic can't be considered.
  
  
  How Can We be Sure?

  
  Over 500 resolutions have been passed in our country's history.
  
  All 50 states have passed a resolution calling for an Article V Convention.
  (See Resolutions passed in Michigan)
  
  It only takes 34 states calling for an Article V Convention to get one called. If any topic was acceptable we would have had over a dozen conventions already.
  
  The only reason we have not had those Article V Conventions is that no one topic has been called for by the constitutionally required 2/3 states, which today is 34 states. 
  
  Read:
  - A Single Subject Convention by Robert Kelly, J.D.
  
  

  Michael Farris: Is an Article V Convention really limited to a Topic? (3 min)
  
  
  
• Proposed amendment must be approved by 3/4 of the State legislatures (38 states). Only the most overwhelmingly agreed upon solutions to our problems can garner this level of support. Thirty-eight state legislatures will not agree to rewrite the Constitution, or eliminate the Bill of Rights. 
  
  
• Only 13 state legislatures are required to block any amendment. With such a low bar to block an amendment we can be confident that amendments that do not have overwhelming support will not be ratified.

Further Reading:

       - An Article V Convention Is Not a Constitutional Convention

       We Know How Conventions Works

1. All 50 States Participate
All 50 states can send commissioners regardless of whether they are one of the 34 states that called for the convention.

2. 1 State = 1 Vote.
States can send as many commissioners/delegates as they like, but together they only have 1 vote.

Michael Farris: Will States be Equally Represented at an Article V Convention? (1 min)

3. State Legislatures Select Commissioners
State legislatures decide how to select their commissioners, who their commissioners are and how many they send.

4. Commissioners have limited Authority
Commissioners are limited to proposing amendments that fall within the topic that the Convention was called for (specified within the resolutions passed by the 34 state legislatures) as well as by any further limitations that their state legislature puts in their commission.

5. Proposed amendments are sent back to the 50 states for ratification.

6. The Courts have Jurisdiction
Questions regarding an Article V Convention are the jurisdiction of the courts not Congress. Court opinions on Article V begin in 1798 and extend continuously into the 21st century, including input from the US Supreme Court.

• A Response to the “Runaway Scenario” By Robert G. Natelson
  
  
• Founding-Era Conventions and the Meaning of the Constitution's “Convention for Proposing Amendments By Robert G. Natelson (Florida Law Review)

• Twenty Legal Rules for Conventions for Proposing Amendments

 A Primer on Article V History with Rob Natelson (11 min)

 Rick Green: How Will an Article V Convention Work? History is Our Guide (2 min)

Simulated Article V Convention 2023 (8 hr, 36 min)

    States Control the Process & Commissioners

• State Legislatures set the parameters for the Article V Convention in the Resolutions they pass. In America's history there have been over 500 resolutions passed calling for an Article V Convention. Each for a stated purpose.
  
  
• The COS Resolution limits the Article V Convention to proposing amendments that fall into our three topic areas.
  
  1. Fiscal Restraints on the federal government
  2. Term Limits on federal officials/members of Congress
  3. Limit the Size/Jurisdiction of the federal government
  
  
• State Legislatures determine: How to select Commissioners, how many to send, and who they will be. State legislatures can pass a Commissioner Selection Resolution to establish how they intend to do these things.
  
  
• State Legislatures can further limit the authority of their Commissioners in their commission by specifying what they have authority to promote and how they are allowed to vote.
  Delaware's choice to do this is part of why we have a US Senate.

   
  At the Philadelphia Convention Delaware prohibited it's delegates from voting to change the equality of the states.This limitation contributed to the inclusion of the US Senate in our Constitution because the US Senate gives the states equal voice whereas the US House provides larger states with more representation.
  
  

  "On reading the credentials of the deputies it was noticed that those from Delaware were prohibited from changing the article in the Confederation establishing an equality of votes among the States."  May 25, 1787 - The Proceeding Notes (PDF) (YALE)

  
  
  
• State Legislatures can recall their commissioners at any time and any actions a commissioner takes outside of their authority are null and void by law. A process for recall can be specified in a Commissioner Selection Resolution.
  
  
• State Legislatures can establish criminal penalties for Commissioners & members of the public who attempt to subvert this process. See our Criminal Penalty Bill model language.

Read:

- The States Control the Article V Process By Robert Kelly, J.D.

     It Can't Runaway

An Article V Convention can not rewrite the Constitution, replace the Constitution, or eliminate the Bill of Rights.

• An Article V Convention does not have the authority to make any changes. It only has authority to propose changes that fall within the convention topic.
  
  
• All proposed amendments MUST be ratified by 3/4 of the states (38 state legislatures). 38 state legislatures will never agree to replace the Constitution or eliminate the Bill of Rights.

Read:

- A Response to the “Runaway Scenario” By Robert G. Natelson


Watch:

Michael Farris: Could An Article V Convention Rewrite or Replace the Constitution? (2 min)

Professor Rob Natelson DEBUNKS the "runaway convention" myth (5 min)

   There Has Never Been A Runaway

The Claim:

There is a claim circulating that our US Constitution is a fraud and the result of a massive abuse of power on the part of our founders.

According to this claim the commissioners at the Philadelphia Convention of 1787 created our current Constitution without authorization and then circumvented the legal process to make it the law of the land. In short, the claim is that the Philadelphia Convention (Constitutional Convention) was a "Runaway Convention."

Fortunately, this is False.

The Philadelphia Convention (also known as the Constitutional Convention) was not a runaway.

Our country's first "constitution" was the Articles of Confederation. The Articles of Confederation were adopted by the Continental Congress in 1777 and required unanimous consent for any changes.

The Articles of Confederation did not work well, so in 1786 five states (NY, NJ, PA, DE, VA) sent commissioners to the Annapolis Convention to find a way to fix them. The commissioners failed to find a solution and instead recommended that the states call a new convention for the purpose of writing a new document that would meet the needs of the country.

Twelve states decided to follow this recommendation. They called for a convention to write a document that met the needs of the country and appointed commissioners to attend.

The Philadelphia Convention met in 1787. Commissioners from the twelve states met and wrote a document consistent with the needs of the new country. The commissioners made 2 recommendations to the thirteen states.

1st - They recommended that the states approve a new process for the ratification of the new Constitution that only required 9 states to agree as opposed to all 13. 

2nd - They recommended that the states ratify the new Constitution.

Between September 1787 and August 1788 two things happened.

1st - All 13 states approved the first recommendation changing the requirement for ratification of the new Constitution to 9 states.

2nd - 11 of the 13 states approved the new Constitution, which under the new ratification rules made it the law of the land.


Documents:

• 1777: Articles of Confederation.(image / read)
• 1786: Annapolis Convention Proceedings (PDF) (Yale)
• 1786-1787: Twelve States Called for a Convention & appointed Commissioners Documents Appointing Commissioners to attend the Philadelphia Convention. (PDF) (PDF - highlighted) (Congressional Serial - H. Doc. 69-398)
  See 1787 Constitutional Convention Calls & Commissions

  
• 1787 (May 14 - Sept 17): Philadelphia Convention
  Philadelphia Convention Notes - (Yale)

Learn More:

Can We Trust the Constitution? Answering The “Runaway Convention” Myth by Michael P. Farris, JD, LLM, Convention of States Action — Senior Fellow for Constitutional Studies

The Constitution Was Not The Product Of A Runaway Convention by Michael Farris (Harvard Journal of Law and Public Policy)

Michael Farris: The 1787 Convention Was Conducted Lawfully

 GOV 100 Constitutional Literacy (Course Taught by Michael Farris)

      One Party Can't Control The Outcome

In our country there are generally around 20 Democrat controlled state legislatures and 30 Republican controlled state legislatures. (Please note that these numbers fluctuate election to election. There can also be split legislatures, and Nebraska is in its own category altogether.)

What does this mean for the Article V process?

It takes 34 state legislatures to get an Article V Convention. With approximately 20 Democrat legislatures and 30 Republican legislatures, neither political party has control of enough states to call an Article V Convention without the support of state legislatures of the opposing party. This ensures that any Article V Convention that achieves the required 34 states will have bi-partisan support.


What About the Convention?

At the Convention a simple majority determines the amendments that are sent back to the states.

HOWEVER, it's important to remember that only amendments that can garner the support of 3/4 of the state legislature (38 states) can get ratified. This means that if a proposed amendment only garners the support of a simple majority at the convention (26 states), it is unlikely to garner the necessary support to get ratified by 38 state legislatures.


What About Ratification?

Ratification can't happen without bi-partisan support.

The approximate 20 Democrat legislatures would require the support of approximately 18 Republican legislatures to ratify an amendment.

The approximate 30 Republican legislatures would require the support of approximately 8 Democrat Legislatures to ratify an amendment.

These numbers simply do not allow for one political party to control the outcome of an Article V Convention

     Congress Has NO Say

Congress can't take over an article V convention, choose the delegates, set the agenda, or make the rules.

The Article V Convention was added to Article V to ensure that the states had a way to amend the Constitution in the event that Congress or the federal government stole power that it wasn't supposed to have. Giving Congress the authority to interfere in the Article V Convention process would have been completely counter productive.

The courts have further clarified in Smith v. Union Bank, 30 U.S. (5 Pet.) 518, 528 (1831) that the Article V Convention is a Convention of the States.


What can Congress Do?

The US Constitution gives Congress two parts to play in this process.

1st - Congress calls the Convention, stipulating both the time and place.

2nd - Congress Proposes the Mode of Ratification. The constitutions gives two options: ratification by the legislatures of the states or ratification by state conventions.

If Congress fails to exercise this power reasonably, either the courts or the states themselves can override Congressional inaction.

Watch:

Why the American Framers inserted Convention of States into the Constitution

     The Courts Agree

In this case history is especially relevant because the courts and the US Supreme court have consistently looked to the founding era records to explain the terms in Article V and decide on questions regarding Article V.

There have been over 30 court cases with holdings regarding Article V which have provided clarification on the legalities of the Article V process.

Selected Court Cases Related to Article V

Case: Barker v. Hazeltine, 3 F. Supp. 2d 1088 (D.S.D. 1998)
Holding: Article V is the only constitutional method of amending the US Constitution.

Case: Dodge v. Woolsey, 59 U.S. 331 (1855) 
Holding: Amendatory conventions may be single issue. The States and/or the people cannot dictate the amendments. A state application is valid solely because it was made by the state.

Case: Gralike v. Cooke, 191 F. 3d 911 (8th Cir. 1999)
Holding: Article V Conventions cannot be prohibited from deliberation and consideration of a proposed amendment and thereby limited to pre-written wording.

Case: Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) 
Holding: No signature of the President is required for a constitutional amendment to be valid and complete.

Case: In Re Opinion of the Justices, 204 N.C. 306, 172 S.E. 474 (1933) 
Holding: An Article V Convention may be limited in purpose to a single issue or to a fixed set of issues.

Case: Leser v. Garnett, 258 U.S. 130 (1922)
Holding: The state legislature’s discretion could not be supplanted by the rules imposed by a third party.

Case: Opinion of the Justices to the Senate, 373 Mass. 877, 366 N.E. 2d 1226 (1977) 
Holding: The governor plays no role in the approval process of an Article V Convention application.

Case: Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842)
Holding: No one is authorized to question the validity of a state’s application for an Article V Convention.

Case: Smith v. Union Bank of Georgetown, 30 U.S. 518 (1831)
Holding: An Article V Convention is a “convention of the States” and is therefore endowed with the powers of an interstate convention.

Case: State of Rhode Island v. Palmer, 253 U.S. 320 (1920) 
Holding: An Article V Convention will require only two-thirds of the quorum present to conduct business.

Case: Ullmann v. United States, 350 U.S. 422 (1956) 
Holding: The amendment and ratification processes cannot be changed to circumvent the Article V Convention.

Case: United States v. Thibault, 47 F.2d 169 (2d Cir. 1931)
Holding: The federal or national government is not concerned with how an Article V Convention of a state legislature is constituted. Therefore, the Article V Convention is empowered to organize and conduct its business as the delegates or commissioners see fit. 

Read:

- How the Courts have Clarified the Constitution’s Amendment Process By Robert Natelson
 
- 34 Findings of Court Cases Related to Article V of the United States Constitution compiled and researched by the members of the Wisconsin GrandSons of Liberty

     The 2nd Amendment Is Safe

The Convention of States Resolution does not jeopardize the 2nd Amendment because the Article V Convention it calls for is limited to proposing amendments in our three topic areas (federal fiscal restraints, federal term limits, and reducing the size/jurisdiction of the federal government).

None of these topics allow the proposal of an amendment that limits/alters the Bill of Rights or the Second Amendment.

"The Right to Safety Amendment will raise the minimum age to buy a gun from 18 to 21, mandate universal background checks, institute a waiting period for all gun purchases, and ban assault rifles for civilians – while leaving the Second Amendment intact. Additionally, the Right to Safety will affirm Congress, states, and local governments can enact common-sense gun safety laws that save lives."
California Office of the Governor

If it were possible to use any Article V Convention to alter the 2nd Amendment, it would not have been necessary for California to start their own Article V movement.

Could An Article V Convention touch the 2nd Amendment?

If 34 states passed resolutions specifically calling for an Article V Convention to propose amendments related to the second amendment then, yes, a Convention could be called with the authority to propose amendments within that topic. Proposed amendments would then require ratification by 38 states before they were officially made the law of the land.

However, while this is legally possible, it would require a significant policy shift by a large number of US states to achieve. Twenty-nine states in America (as of 2024) are constitutional carry states (permitless carry), leaving only twenty-one states that still require a permit to carry a firearm. With a majority of states moving towards fewer gun restrictions it seems very improbable that 34 would pass a resolution calling for a convention to propose gun restrictions.  

 
Read:
       - An Open Letter Concerning The Second Amendment and The Convention of States Project by Charles J. Cooper (Long Time Constitutional Law Litigator for the NRA)