5 need-to-know facts about COS

Legislative season is upon us, which means Convention of States proponents are turning out everywhere in support of the grassroots call for an Article V convention. Additionally, that means our opponents are also turning out, predictably armed with the same old lies and misinformation about why an Article V convention poses a radical threat to American liberty and democracy. Such misguided claims are almost unavoidable — it’s time that we call them out and debunk them. Especially as we interact with state legislators, urging them to pass the resolution, here are five facts every COS supporter ought to know.

1. An Article V convention CAN — and will — be limited

Detractors love to claim that the Article V convention process cannot possibly be limited; that while the COS application appears to bind delegates to consider only three topics (federal spending, jurisdiction, and terms of office), an actual convention would quickly overstep those bounds and rewrite vast swaths of the Constitution. In reality, in-depth research from Professor of Law at Southwestern Law School, Roman J. Hoyos, and leading 19th-century convention scholar John Alexander Jameson punctures the notion that conventions are “inherently unlimited.”

“Jameson’s work makes a systematic and powerful case for the idea that constitutional conventions are by definition limited institutions,” Hoyos writes, reasoning that if even constitutional conventions — which are inherently broader than amendment conventions — are limited, an Article V convention, by extension, must be as well.

Learn more here.

2. An Article V convention cannot “run away”

The contention here is similar to the first one. Opponents argue that a convention would wield the authority to overhaul or even replace the Constitution. That simply is not true. An Article V convention is explicitly constrained to considering amendments to the Constitution. Any proposal emerging from the convention must undergo scrutiny by three-fourths of the states for ratification before it can be enacted. Notably, as highlighted by attorney Rita Peters, Congress holds a parallel authority, yet unlike a convention, it can exercise this power at any time. Thus, those wary of a potential "runaway convention" should instead direct their concerns towards Congress. As Peters aptly questioned, “why should we live in such fear that a convention of the states would propose such amendments but have no fear that Congress will ever do so?”

3. An Article V convention is NOT a constitutional convention    

Opponents of our efforts often inaccurately label the Article V amendments convention a constitutional convention. However, not only does a cursory examination of the Constitution reveal that these are two separate entities, but historical evidence confirms it. Having meticulously studied a comprehensive 40+ volume compilation detailing the ratification of the U.S. Constitution, former law professor and constitutional scholar Robert Natelson affirmed, “I have found no—repeat no—cases of anyone in the founding generation using that term to refer to an amendments convention—nor, for that matter in the 19th century either. The misnomer ‘constitutional convention’ to refer to an amendments convention apparently did not arise until the 20th century.”

4. The Article V convention was given to us by our Founders — and they expected us to use it

One of the most unusual arguments against Convention of States is that it somehow threatens the Constitution. Given that the Framers unanimously bestowed upon us this provision to safeguard the Constitution, such reasoning should immediately be recognized as flawed. Indeed, as I have noted elsewhere, Founders such as Alexander Hamilton and George Washington seemed to assume that the American people would regularly employ Article V, thereby halting the spread of tyranny (read Federalist No. 85). “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority,” Hamilton wrote, for example. Alas, we can only imagine his shock and confusion upon discovering that, centuries later, we have neglected to utilize this powerful tool.

5. Anti-Article V talking points were invented by establishment individuals with close ties to Washington, D.C.

Among the myriad anti-Article V narratives examined in this article, it is noteworthy that these myths have permeated both right- and left-wing rhetoric against Convention of States. Shockingly, Professor Natelson observes that these fabrications originated from “prominent establishment liberals with close ties to the D.C. ‘swamp.’” According to Natelson, figures such as Charles Black, Gerald Gunther, Walter Dellinger, William Swindler, Laurence Tribe, and Arthur Goldberg deliberately endeavored to sow discord among conservatives by instilling seeds of fear and uncertainty regarding the Founders' remedy for an overbearing federal government.

Today, we must reclaim the Founders’ wisdom by rejecting these fear-based lies. To learn more about the efficacy of the Article V process, watch The Case for Convention of States with Michael Farris. To join Dr. Farris and other renowned constitutional scholars in support of this important cause, sign the Convention of States petition below.