How an Article V Amendment Convention will work

by Dr. Ed Berry

This article is based upon what I learned from Ron Natelson’s talk on October 21, 2013, in Kalispell, Montana.

The Problem

We have a freedom problem. Liberals and socialists have changed the interpretation of our Constitution in a manner that helps them achieve their objectives. The jurisprudence they have established can take 200 years to reverse by using the means we are presently using. In fact, we may never achieve our freedom goals if we only keep using the methods we now use.

Conservatives have tried many ways to stop the progress of America toward socialism. We have tried:

  • Political action
  • Better citizen education
  • Commissions
  • Deals to reduce our deficit
  • State interpositions other than Article V

So far, all our efforts have failed to stop or even slow down the progress of the liberals and socialists. The Founders of our Constitution provided a way to solve our present  problem in Article V. Here’s what an Article V Amendment Convention can accomplish:

  1. Its Amendments can change law overnight and quickly reverse the gains made by the liberals and socialists over the last 200 years.
  2. It can redefine the jurisprudence in our legal system to give immediate advantage to conservative views.
  3. It will force judges to obey the new legal rules.

In short, an Article V Amendment Convention called by two-thirds of the states can accomplish what no other alternative can accomplish. There is no other way to reverse the gains made by the liberals and socialists. Most conservatives want to try it but the more extreme conservatives are fighting it. Until the conservatives can get together on this, it looks like the liberals will continue to win. Here’s why the more extreme conservatives are fighting against an Amendment Convention:

  1. They think the liberals will gain control the Convention and remove our remaining Constitutional protections.
  2. They think it won’t work.
  3. They think it will be a waste of time.

Let’s review the concerns of those who are fighting against an Article V Amendment Convention. Here are some beliefs that are really myths. We learn they are myths via the extensive legal research by Rob Natelson. Myths about Article V:

  1. The 1787 Convention is our only legal precedent.
  2. Congress called it to amend the Articles.
  3. It exceeded its instructions.
  4. Madison opposed Article V conventions.
  5. It’s a con-con that can’t be controlled.
  6. The N&P Clause gives Congress power to control convention rules and selection.

Over the years, the following people made the above claime:

  1. Anti-Federalists who claimed the 1787 convention exceeded its powers.
  2. People in the late 19th century who claimed an Article V Convention is an unlimited con-con.
  3. People against the Dirksen re-apportionment amendment in the 1960s.
  4. Supporters of Senators Bobby Kennedy (D-NY) and Joe Tydings (D-MD).
  5. Professors and judges who wanted to protect liberal Supreme Court decisions without much research.

These false claims, not any present research, form the basis of the present belief by those who fight against an Article V convention. These false claims show how right the King was in “The King and I” song “The Puzzlement”:

And it puzzle me to learn  That tho’ a man may be in doubt of what he know,  Very quickly he will fight…  He’ll fight to prove that what he does not know is so! 

It is always wise to study the latest research on any subject, because if new data contradicts your beliefs the you should change your mind. Here’s what Rob Natelson’s research proves:

  1. The Framers created the Article V process precisely for the kind of crisis we now fact.
  2. The Constitution gives the Convention all its power and the Convention can only propose.
  3. The convention is a meeting of committees (of commissioners) from state legislatures.
  4. If 34 states apply on a topic, Congress must call for that topic.
  5. Each legislature decides how to choose, commission, and instruct its committee.
  6. Each state gets one vote.
  7. The Convention adopts its own rules.
  8. The Convention decides whether to propose amendments and drafts them.
  9. Resolutions outside the authority are mere suggestions and not ratifiable.
  10. States may ratify or reject valid proposals.
  11. These rules can be enforced by the states, by Congress and by the courts.

So what is Article V? Here’s the whole Article V:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Convention in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

But before we attempt to interpret Article V by ourselves, we must remember one very important fact: It is settled constitutional law that the meanings of the words in Article V are fixed by Founding-Era and other historical evidence. Here are some of the important cases:

  • Hollingsworth v. Virginia, 3 U.S. 381 (1798)
  • Dillon v. Gloss, 256 U.S. 368 (1921)
  • Leser v. Garnett, 258 U.S. 130 (1922)
  • State ex rel. Donnelly v. Myers, 127 Ohio St. 104, 186 N.E. 918 (1933)
  • Dyer v. Blair, 390 F.Supp. 1291 (N.D. Ill. 1975),
  • Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981), etc.

Here are the key words in Article V:

  • The Congress . . . shall propose . . . or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing . . .
  • which, in either Case, shall be valid . . . when ratified by the Legislatures of three fourths of the several States, or by Convention in three fourths thereof,
  • as the one or the other Mode of Ratification may be proposed by the Congress
  • Provided that no Amendment . . . . [etc.]

You will note there are 4 distinct steps in Article V. These 4 steps are:

  • A proposal
  • A ratification
  • A selection of the mode of ratification
  • Limits on the amendment power

Here are some convention facts: A convention is a meeting, other than a legislature, to deal with one or more political problems. Our Founding Generation held many conventions. During the life of Ben Franklin (1706-1790), there were at least 25 conventions among the colonies or states. Here are some multi-colony conventions:

  • 1711 – Boston, MA
  • 1744 – Lancaster, PA
  • 1745 – Albany, NY
  • 1754 – Albany, NY
  • 1765 – Stamp Act Congress, NYC
  • 1768 – Fort Stanwix (Rome), NY
  • 1774 – First Continental Congress, Philadelphia

Here are some multi-state conventions:

  • 1776-77: Providence, RI (finance & war)
  • 1777: York Town, PA (inflation)
  • 1777: Springfield, MA (finance & trade, excluding matters within Congress’s powers)
  • 1778: New Haven, CN (inflation)
  • 1779: Hartford, CN (inflation and trade)
  • 1780: Philadelphia, PA (inflation).
  • 1780: Boston, MA (war strategy)
  • 1780: Hartford, CN (war strategy)
  • 1781: Hartford, CN (war supply)
  • 1786: Annapolis, MD (commerce)
  • 1787: Philadelphia, PA (“rendering federal constitution adequate to the exigencies of the union”)

Here are some conventions called but never held:

  • 1777 & 1778: Charleston, SC (inflation)
  • 1778: Frederickburg, VA (inflation)
  • 1781: Providence, RI (conduct of war)
  • 1783: Hartford, CN (taxation)
  • 1786: Philadelphia? (navigation in Susquehanna & Chesapeake)

All these conventions led to these standard rules:

  • The Convention “application” or “call” sets the topic
  • Each state instructs and sends a “committee” of “commissioners”
  • One state gets one vote
  • Convention adopts its own rules and elects officers
  • Unless authorized to “pledge faith,” convention only proposes.

Most leading Founders also had served as commissioners to a convention. Since the procedures were standard, they inserted in Article V only a few clarifications:

  • The convention is to propose only
  • If states apply, Congress must call
  • A states’ convention is not a “plenipotentiary” (constitutional) convention

Natelson’s research also discovered:

  • The Constitutional Convention was called by Virginia and New Jersey, not by Congress.
  • It did not exceed its authority.
  • Madison did not oppose Article V conventions. He later recommended them. (Letter to Edward Everett, Aug. 28 1830).

The ratification debates confirm that the states control the convention. James Madison, Federalist No. 43:

“[The Constitution] equally enables the general and the State governments to originate the amendment of errors. . .”

NY Ratifier Samuel Jones

“It could not be known to the framers of the constitution, whether there was too much power given by it or too little; they therefore prescribed a mode by which Congress might procure more, if in the operation of the government it was found necessary; and they prescribed for the states a mode of restraining the powers of the government, if upon trial it should be found they had given too much.”

Tench Coxe:

“. . . two thirds of the states can always procure a general convention for the purpose of amending the constitution, and . . . three fourths of them can introduce those amendments into the constitution, although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.”

George Washington:

“a constitutional door is open for such amendments as shall be thought necessary by nine States.”

Alexander Hamilton, Federalist No. 85:

“But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.”

After the Founding, the Supreme Court confirmed that a “convention for proposing amendments” is a convention of the states. Smith v. Union Bank, 30 U.S. 518 (1831) After the Founding, these actions give precedent to how an Amendment Convention shall operate:

  • Several major application campaigns
  • Ratification of 21st Amendment by state conventions
  • Several more multi-state conventions

The Washington Conference Convention just before the Civil War was a “dry run” for convention procedures:

  • Called by VA in Jan. 1861 (before its secession) to avoid Civil War.
  • Met February 4 – Feb. 27, 1861.
  • Chaired by former President John Tyler
  • Followed standard procedures.
  • The Convention proposed a compromise amendment, then adjourned.

(1244)

Copyright (c) 2013 by PolyMontana LLC or by the author. All rights reserved.

Comments

  1. 1

    While some of what Dr. Berry states is true, much of what he states is not. This is not a reflection on Dr. Berry but rather his source of information, Robert Natelson. For those who have no interest in reading a long reply to the specifics made by Dr. Berry in his column, I suggest you read the article I wrote: http://www.foavc.org/reference/file2.pdf . It clearly refutes Robert Natelson entirely not with accusations, but public record.

    As to the comments made by Dr. Berry. He is correct about a convention. Until recently most conservatives were opposed to calling a convention. Indeed Mark Levin was an opponent of the convention. Now these same people suddenly say they want a convention. As the saying goes the devil is in the details as to why they want a convention. If one reads Natelson, you will discover two facts: one he bases his entire theory on an entirely unproven theory of law and two, he favors cutting the American people entirely out of the amendment process which the courts and Congress have firmly said is their right to have. I suggest those thinking I’m wrong read http://www.foavc.org/reference/file38.pdf and note who is the author of the ALEC Report. All of these groups that now heretofore opposed a convention and now support it can trace their origins back to ALEC.

    What’s funny in all this of course is if you take time to read the 746 applications from 49 states (some ten times the number required to cause a convention call) you’ll see nearly all the applications favor the conservative agenda–in other words conservatives have been fighting themselves and opposing their own ideas. Little wonder the liberals have remained out of the fray–why bother when your opponent does such a bang up job on himself?

    Anyway to the points of the column.

    I’ll skip the part about the opponents of a convention and get to the list about a convention. Dr. Ed points out several points about a convention. The first two in his list are correct. Points 3 and 4 and 5 are incorrect. He obviously took down Natelson’s information but has not read it yet. He should include in his list several other supreme court rulings such as United States v Sprague where the court ruled specifically that no rules of construction, interpolation or addition was permitted in Article V. Thus, unless article v states it, it does not exist.

    As noted in Hawke and other decisions the courts have long since ruled a convention is federal, not state, in nature. Thus, the states do not appoint “commissioners” or “ambassadors” as, and the court has ruled on this several times, the sovereignty of the nation is held by the people, not the state (legislatures). Hence, when Natelson urges appointment of delegates he not only goes against court rulings but federal law as well.

    Obviously as Article V does not discuss same subject or topic as the basis of a convention call, it does not exist. The basis of a convention call is a simple numeric count of applying states with no terms or conditions. The courts have ruled on this in the rulings Dr. Ed cites so simply put a read of these rulings disproves Natelson. The only logic therefore is that Natelson gambles people won’t check out his work too closely.

    As to Article V being settled by Founding Era evidence, this is true to some extent but as I show in my article, far less than Natelson believes. First of all all the “evidence” cited of multi colony conventions, that is those held before 1783, are irrelevant. All were held under the authority of the King of England, that is under English law and English law has no bearing on American law which began after 1783 when the treaty of Paris created our nation and hence its form of law. Even the Articles of Confederation, which after modification, had to be carried forward in the Constitution to have effect which, of course, they were.

    Again as to setting the topic of a convention. While it may have been true in conventions before the Constitution, the terms of the Constitution do not empower states to do this. Moreover there is historical record in the Convention records which clearly show the Founders intended no such powers exist. The powers of a convention are to propose only. There is no such thing as “pledge faith” or any other such nonsense.

    As Congress issued the call for the convention in February 1787, it is clear they did call the convention. While some states may have suggested it, nevertheless it was resolution of Congress not of any state or states. If it were, then the convention would have sent its report (the proposed Constitution) to those states not to Congress as they did.

    As to Dr. Ed’s reference to Smith v Union Bank (1831) here is a link to that case (the Internet is truly wonderful as it permits almost instant correction of the record: http://supreme.justia.com/cases/federal/us/30/518/case.html I assume he got this from Natelson and it clearly shows how reliable Natelson is.

    The case revolved around estate laws in two states. It is true the court did discuss conventions. Quoting Justice Johnson exactly, “(discussing treaties page 30 U.S. 526) :…since there are two instances in which the generality of that provision is deviated from, the one in favor of the payment of debts due where the goods are and the other subjecting the right of property to the law of the states. I AM REFERRING TO THE CONSULAR CONVENTION OF 1788, BY THE 5TH ARTICLE OF WHICH IT IS EXPRESSLY STIPULATED THAT GOODS SHALL BE SUBJECTED TO THE PAYMENT OF DEBTS DUE IN THE FOREIGN COUNTRY.” [Emphasis added]. The 5th Article referred to has nothing to do with the amendment process.

    Later in the same ruling Johnson says, “This necessity of administering where the debt is to be recovered effectually places the application of the proceeds under the control of the laws of the state of the administration.”

    A simple read proves the case had or has nothing to do with Article V of the Constitution but deals instead with the collection of debts owed and applicable state laws and the word “application” in this state does not refer to applications submitted for a convention call but debt law and their administration by use of state law.

    The civil war conference Dr. Ed refers to was not a “dry run” as he calls it but a last, failed attempt to avert civil war when an insufficient number of states refused to submit applications for a convention call by Congress.

    In sum, read all the evidence then decide. I seriously all take time to go to the FOAVC website at http://www.foavc.org and read the FAQ section as well as all reference material, then make up your mind. Obvious factual errors such as Natelson makes should be cause to ignoring him regardless of who suggests otherwise.

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