With the profligate spending, overreach and incompetence that continues in Washington DC, the need for an Article V Convention of States is more apparent than ever. This week, Professor Rob Natelson, the foremost scholar on Article V describes how the process works. Enjoy!
Brett
How a ‘Convention of States’ Really Works
By
Professor Rob Natelson
This article was first published by the Epoch Times on February 25, 2021.
“Ignorance lies not in the things you don’t know, but in the things you know that ain’t so.” — Will Rogers
In an earlier, widely shared, essay I contended that state legislatures should require Congress to call a “convention of the states.” Article V of the Constitution empowers such a convention to propose constitutional amendments to correct federal dysfunction. Any proposals would have to be ratified by three-fourths of the states (38 of 50).
The Constitution’s framers added the convention mechanism to allow states to bypass Congress and amend the Constitution if the federal government abused or exceeded its powers.
This essay explains how the procedure works. This information comes from many years of academic research on the constitutional amendment process. No one paid for my conclusions, and they sometimes contradicted my earlier beliefs.
Opponents of our Constitution have disseminated a mass of falsehoods about the document—for example, the charge that it discriminated against women. But none are as widespread as falsehoods about the amendment process.
This is no accident: A disinformation campaign began in the 1960s and continues to the present day. Liberal commentators initiated the campaign (pdf) to frighten the public against a convention. They feared that it might propose amendments to overturn liberal Supreme Court decisions or require a balanced federal budget.
Establishment newspapers (pdf), among them the Washington Post and the New York Times, aided the campaign. Academics—whose only unifying characteristic is that they have no scholarly publications on the subject—joined the chorus.
This disinformation has been so successful that many Americans have been duped into thinking that the convention procedure is somehow evil. In fact, it is one of the Constitution’s most important checks and balances. Many of our current ills flow directly from our failure to use it.
Convention opponents often claim that constitutional amendments will have no effect. History shows they are flat wrong. Over the past 230 years, amendments have been powerful tools for reform. We obtained our Bill of Rights through amendments. The Civil War did not finally abolish slavery; an amendment did that. Amendments have curbed abuse of minorities, assured women the vote, and limited the president to two terms.
Think about it: Would we be better off without the First Amendment’s protection for freedom of speech and religion? Would we be better off without the 22nd Amendment’s two-term limit on the president? I’ve never met anyone who believes either of those things. But how many believe we should extend term limits to Congress or the Supreme Court? Towering supermajorities of Americans.
Why hasn’t it happened? Because Congress refuses to propose a term limits amendment, and we haven’t had the guts to call a convention to propose one.
The Founders created the amendment process for four distinct reasons: to resolve disputes over constitutional interpretation, correct drafting defects, respond to changed conditions, and forestall and correct abuses. During the first 15 years of federal operations, the founding generation adopted amendments for all those purposes. Opponents err when they claim that the only reason for the amendment process was to correct drafting errors.
Article V outlines the amendment process, but like any other part of the Constitution, you must read it in historical context. Every informed student of the Constitution knows that when the document uses specialized phrases, we have to examine the historical record to fill in the details. The Supreme Court recently did just this with the constitutional phrase “trial … by jury” (pdf).
Fortunately, the amount of historical and legal clarification we have for Article V is enormous, so when you hear charges that Article V is “vague” or “sketchy,” chalk it up as a confession of ignorance.
Article V tells us that before the states may ratify an amendment, it first must be formally proposed. It provides four paths to amendment. (Common claims that there are only two methods are also erroneous.) The paths are:
(1) Proposal by two-thirds of each house of Congress, followed by ratification by popular conventions in each state. This method was used to adopt the 21st Amendment, repealing Prohibition.
(2) Proposal by two-thirds of each house of Congress, then ratification by state legislatures. This method was used for the other amendments.
(3) Proposal by a “Convention for proposing Amendments,” then ratification by popular conventions in each state.
(4) Proposal by a “Convention for proposing Amendments,” then ratification by state legislatures.
In my view, a constitutional amendment imposing term limits or imposing more limits on Congress would be a good idea. True, some argue that we should continue to rely on remedies like electing good people, lobbying, bringing lawsuits, and public education. I’m in favor of those things, but we’ve been doing those for decades and our country is worse off than ever. Reforms by even the wisest federal officials have proved to be short-lived. A course advocated by some of the woolier organizations, widespread nullification, is both impractical and likely unconstitutional.
So, what remains is the course the Founders themselves prescribed: a convention of states for proposing corrective constitutional amendments.
Let’s get it done.
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