Rita Peters: FACTS that Rebut the “Runaway Convention Myth”

The following was written by Convention of States Senior Vice President for Legislative Affairs and attorney Rita Peters.

1. Article V does not authorize a “constitutional convention”; it only authorizes a convention for proposing amendments to the Constitution we already have.
2. An Article V convention is merely the mechanism through which the state legislatures exercise the exact same power that Congress has under Article V: the power to propose amendments. If ratified by 38 states, amendments would be added to the Constitution just like the 27 amendments we already have.
3. The state legislatures define the agenda for an Article V convention through their applications. Only when 34 states agree that a convention is needed to propose amendments on a given topic, thereby setting the agenda, can a convention be called (that’s why we haven’t had one yet!). 
4. The very reason the Founders added the convention mechanism to Article V was to allow the states a way to bypass Congress in proposing needed amendments. See James Madison’s Notes on the Convention from September 15th, 1787. So the idea that the states cannot define and limit the scope of the convention makes no sense.
5. The delegates to the convention act as legal agents of the state legislatures who choose and commission them. This is a matter of well-documented, universal historical precedent. Any action taken by a delegate outside the scope of his or her authority would be void as a matter of common law agency principles.
6. In Chiafalo v. Washington, The Supreme Court Court concluded that “[a]mong the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise.” The same rationale applies to state delegates to an Article V convention.
7. In the Federalist Papers, both James Madison (Federalist #43) and Alexander Hamilton (Federalist #85) cited the states’ power under Article V for the proposition that the states retain ultimate authority over the federal system and could rein in an out-of-control federal government.
8. There is zero precedent for any “runaway convention” in American history. Anyone who says otherwise should be asked to respond to Michael Farris’ definitive refutation of the runaway myth in Volume 40 of the Harvard Journal of Law & Public Policy. The delegates to the 1787 Constitutional Convention were commissioned to “alter” and “revise” the Articles of Confederation to make it suitable for the needs of the Union—not to “propose amendments” to it.
9. As with historical practice in the context of interstate conventions, the “call” of the convention, which is issued by Congress in the case of Article V, only names the initial time and meeting place, along with the topic that the states have agreed to discuss.
10. Any delegate could object to an off-topic amendment proposal as “out of order.” But even if all the delegates went rogue and acted beyond their authority, and even if Congress submitted some illicit proposal to the states for ratification, and even if the courts failed to intervene, it borders on insanity to believe that 38 states would ratify an amendment proposed under these circumstances.

Legal research and citations can be found in the published treatise by Robert Natelson, The Law of Article V (2d ed.) Apis Books, 2020.

Rita M. Peters serves as Senior Vice President for Legislative Affairs at Convention of States Action and is an allied attorney with Alliance Defending Freedom. Prior to joining COS, Rita worked as Staff Counsel for The Rutherford Institute, a non-profit civil liberties organization. She is a member of the Virginia State Bar and the bar of the United States Supreme Court. As a Presidential scholar at West Virginia University, Rita earned dual bachelor degrees in 1998, graduating summa cum laude in both Journalism and Political Science. She earned her J.D. as a Benedum Scholar at Washington and Lee University School of Law, graduating cum laude in 2001. Rita lives in the Shenandoah Valley of Virginia with her husband, Tim, and their six children, three dogs, two miniature donkeys, and a small herd of miniature Scottish Highland cows.