A great deal of misinformation about an Article V Convention of States has circulated for years. Unfortunately, the February 24 Epoch Times article by Steve Byas served to further rather than dispel this misinformation. One wonders where he is getting his information, since the largest opposition group to an Article V convention of states is the progressive group Common Cause and its affiliates.
From the very beginning of the article, Prof. Byas misrepresented the Convention of States movement. The title “Constitutional Convention Is Not the Solution to Big Government” is itself a misrepresentation. The Convention of States movement is not proposing--and the second clause of Article V does not authorize--a constitutional convention.
It does prescribe the process for the states to call a convention (hence a convention of states) to propose amendments to the Constitution.
The only difference between this method of amending the Constitution and that used many times previously, is that with this method the states call for amendments rather than Congress. It is the “safety valve” that the Framers provided the citizenry to rein in government, even in the face of congressional recalcitrance.
In his second paragraph, Prof. Byas did a grave disservice to the late Justice Scalia by misrepresenting his position on an Article V convention of states. Justice Scalia did in fact say, “A constitutional convention is a horrible idea. This is not a good century to write a constitution.” However, in reference to an Article V convention of states, Justice Scalia also said, “I do not have a lack of trust in the American people. I am the one here who is least terrified of a convention.”
He continued, “The one remedy specifically provided for in the Constitution is the amendment process that bypasses Congress. I would like to see that amendment process used just once. I do not much care what it is used for the first time, but using it once will exert an enormous influence on both the Congress and the Supreme Court.”
Unlike Prof. Byas, Justice Scalia understood the difference between a constitutional convention and a convention of states. A constitutional convention is a forum in which to rewrite the Constitution, and is not authorized under Articled V. However, A convention of states is a constitutionally sanctioned method to propose amendments to the Constitution.
Prof. Byas also referenced Lawrence Lessig’s desire to use an Article V constitutional convention to rewrite the Constitution, removing barriers to the progressive movement. This is a false talking point that has been advanced by progressive groups for many years. Article V in no way authorizes a rewrite of the Constitution via a constitutional convention.
While it is theoretically possible to use Article V to implement progressive goals, doing so would be incredibly difficult. For instance, a convention of states to eliminate the electoral college (as Prof. Byas warns) would require a movement in which 34 states call for such an Article V convention. No such movement is currently underway, nor are a majority of states likely to support such a resolution that would essentially strip themselves of political power.
The only Article V convention of states movement currently active is Convention of States Action. COSA is pursuing a convention to address three specific areas for proposed amendments:
- Limit government overreach
- Achieve fiscal responsibility
- Implement term limits
Fifteen states have already passed resolutions supporting these three topic areas. To imply that a convention addressing these areas would open the door to a progressive agenda is fear-mongering at best and dishonest at worst.
Prof. Byas claims that Article V gives Congress the exclusive authority to determine the number and selection process for convention delegates. He believes this will result in a convention that would mirror the makeup of Congress and give large states disproportionately more control than small states and invite all sorts of mischief, including elimination of our current Bill of Rights. In short, he believes that a convention of states could turn into a runaway convention, resulting in proposals for a myriad of amendments contrary to the objectives of the calling states.
To be blunt, this is blatant misinformation. The foremost leading scholar on Article V is Prof. Robert Natelson, who has written numerous works on the Constitution, including The Law of Article V.
In his book, Prof. Natelson dispels all of the fears projected by Prof. Byas. Through extensive historical research and analysis of court findings, Prof. Natelson has concluded that an Article V convention of states has numerous checks and balances to ensure that a convention of states cannot morph into a runaway constitutional convention.
Per Prof. Natelson, the only role that Congress is authorized in such an event is to name a time and place for the convention. All other decisions reside with the states. Each state may determine who they send as their delegation. Furthermore, they may define the authority which their delegation is granted at the convention.
But their control does not stop there. Each state retains the ability to cancel their resolution calling for a convention of states and may even recall their delegation should it be determined that the delegates are not representing the state appropriately.
Further, the delegates at the convention are only authorized to discuss those topics that have been approved by the calling states. If 34 states pass resolutions calling for a convention to propose amendments to constrain government spending, the delegates are not authorized to discuss other topics (e.g., gun control).
Should delegates deviate from their assigned scope, it would become an unconstitutional exercise of Article V. Even under this unlikely scenario, the states retain ultimate control and can simply recall their delegates.
Further, a convention of states will not be “commandeered” by the large states. While each state may send multiple delegates, their delegation collectively has only one vote. The vote of large states will have no more weight than that of small states.
Finally, once proposed amendments are put forth by a convention, they are still subject to ratification within each individual state. No proposal will become an amendment to the Constitution until ¾ of the states have ratified it.
Aside from the misinformation presented, Prof. Byas exposes his entire argument as disingenuous with his last paragraph. Throughout the piece he has argued that a convention of states runs the risk of undermining and destroying our Constitution. But in his final paragraph he states, “The best we could hope for out of such a convention is that they would meet, pass an amendment or two that we could live with, and go home – giving the federal government yet another part of the Constitution to disobey.”
His argument reduces down to: "The government already disobeys the Constitution, so why add amendments?" That seems rather defeatist, no? Perhaps there are other Americans who are not yet ready to surrender our constitutional republic so easily, especially when Article V is proven to work.
Many of us believe the Constitution still matters and seek to use the constitutional mechanism that the Founders gave us to rein in government.
