Article V Convention

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Randy Barnett at The Volokh Conspiracy writes about the Article V Convention. I actually learned something new reading it, which surprised me.

In popular folklore, there is a sentiment that the Article V Convention would allow the replacement of the constitution as the Constitutional Convention in 1787 did. However, Article V is quite clear: Any proposed amendments would need approval of the states or the people. Thus, we really don’t have too much to worry about in an Article V Convention.

One point is that the convention is first bound by the nature of the call. I had not noticed this language before, but it appears quite obvious now. When states opt for a constitutional convention, excuse me, an amendment convention, they have to declare for what purpose the convention would meet. As they appoint delegates, they can further limit the discussion the delegates are allowed to partake in. As a final check, when the convention is closed and an amendment or set of amendments are proposed, the states have to ratify the changes, either by a vote of the people (through state conventions) or a vote of the state legislatures.

I feel like the time has long passed for the need of a convention. I’d like to see conventions held to address taxation policy, setting a cap on what taxes the federal government can collect. I’d also like to see amendments ensuring a balanced budget, an amendment limiting where congress can spend money, an amendment addressing how the people and states may reverse laws that are in violation of the constitution, etc… We certainly should open up a discussion on amendments that would correct bad supreme court rulings, such as Roe vs. Wade and Kelo. We might also consider repealing the 17th Amendment, thus ensuring that states have a voice in the federal government rather than requiring them to call conventions to have their interests represented.

We should also have a national discussion on amendments the left would like to see, such as amendments to allow entitlement spending programs such as Social Security and Medicare, or amendments to allow for the food stamp and welfare programs. I don’t think the left would like to see a discussion on these blatant violations of the constitution, but at the least we can get it out of our system.

In fact, I’d like to see amendment conventions every 5 or 10 years, just to remind the federal government where it gets its power and to keep congress, the president, and the supreme court on their toes and subservient to the people.

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3 Responses to “Article V Convention”

  1. Joel S. Hirschhorn Says:

    Constitutional Traitors

    Joel S. Hirschhorn

    In recent days the idea of using the Article V convention option in the Constitution received support in an article by Texas US Senator John Cornyn published on the Fox News website. He noted “Recent polling suggests that a plurality of Americans support a convention to propose a Balanced Budget Amendment to the Constitution if Congress will not do so.” He made a good case for using the convention option by saying it “would be part of a national conversation that could last well beyond one or two election cycles. The very length of the convention and ratification process would allow the American people ample opportunity to judge proposed reforms, and ensure that they would strengthen the checks and balances that have served our nation well.”

    A few days later, on the pages of the Wall Street Journal a strong case was made for a “repeal amendment” that would give state legislatures the power to veto federal laws, something worth proposing. Though the oped by a professor and the Speaker of the Virginia House of Delegates did not say so, obviously Congress would never propose such an amendment. That means using an Article V convention whereby state delegates could propose new amendments just as Congress has done, which the Speaker has acknowledged elsewhere.

    At the same time a policy report from the Goldwater Institute recommended that “states seriously consider” using the convention option “to restrain the federal government.”

    So the issue of using this convention option that Congress has refused to convene despite hundreds of state applications and that establishment powers on the political left and right have long opposed merits serious examination. Start with this: Americans overwhelmingly say they love and respect the Constitution and usually specific amendments, though often different ones on the political left and right. Three frameworks help understanding why most Americans oppose using the Article V convention option. Two explain why convention proponents have not been able to impact most opponents that fit these two frameworks. I offer a third framework or plan of attack which I believe will work.

    First, consider the craziness framework. Many Americans have been taught to fear using the convention option, even though it has never been used. They are irrational. This is like being afraid to eat the fruit of the constitutional tree first planted by the Founders even though no one has ever tasted or been harmed by the fruit. Such people stubbornly think they are acting rationally; I think they are crazy and irrational. This delusional thinking based on what is imagined to might happen is not easily changed, because such people have been purposefully and successfully brainwashed. They have an emotional block.

    Rather than fear a runaway convention, people should fear our runaway politicians and government. As quoted in the Goldwater Institute paper Ann Stuart Diamond pointed out that the interpretation that an Article V convention would or could rewrite the whole Constitution “is often a rhetorical ploy to terrify sensible people.” The convention can only offer specific amendments. It is time for Americans to recognize their fear of a convention as having no basis in fact. And that those promoting fear themselves fear the reforms in government that a convention could propose.

    Second, consider the analytic framework. Many Americans use what they think are rational, substantive arguments. Convention proponents use facts based on the exact language in Article V or other historical facts to objectively contradict wrong-headed thinking. But correcting the record has not worked sufficiently, largely because opponents invent their own facts, ignore correct ones, and consume disinformation disseminated by convention opponents. They have an intellectual block. Cognitive dissonance works to prevent the pain of accepting new information incompatible with their negative views about a convention.

    We should not invite, respect or participate in arguments by opponents that fit these two frameworks. We should, in particular, recognize and condemn morally offensive fear mongering used intentionally by convention opponents. Convention opponents seeking protection of their ability to influence the political system and selling fear and disinformation must face their constitutional guilt.

    Converting convention opponents to proponents requires a paradigm change, which is very difficult. However, the current justified high level of dissatisfaction with government, politicians and both major political parties and the strong desire for reform of government justify use of a new approach.

    The patriotic framework better gets to the root of the problem from a rule of law perspective. Rather than condemn convention opponents as irrational or ignorant, we condemn unpatriotic constitutional hypocrites. When they openly oppose the convention option they are constitutional traitors.

    With the patriotic framework we take advantage of frequent strong public support for constitutional amendments not proposed by Congress, including these: In 1996, 74 percent of Americans favored a constitutional amendment to limit the number of terms that members of Congress and the US Senate could serve. In 2005, 76 percent favored an amendment to allow voluntary prayer in public schools, and in 1983 81 percent favored it. In both 2000 and 2004 61 percent favored amending the Constitution so that the presidential candidate receiving the most popular votes would win, replacing the Electoral College. In 1995, a balanced budget amendment passed the House but failed to meet the two-thirds requirement in the Senate by a single vote; this year there is a strong national movement to get it and a number of other amendments that would surely earn broad public support.

    The basis for the new framework is this: Virtually everyone professes respect and admiration for the US Constitution and knows that it includes a process for amending it. But if someone opposes using the Article V convention option, then he or she is an unpatriotic constitutional hypocrite. When they openly oppose a convention they are a constitutional traitor replacing the Founders thinking with theirs, putting themselves above the law.

    Moreover, it is impermissible to pick and choose what parts of the Constitution are supported and obeyed. Similarly, elected public officials who swear obedience to the Constitution cannot pick and choose which parts to obey. Such behavior makes a mockery of the supreme law of the land, the rule of law, and our constitutional republic. Silence by public officials on the issue is cowardly opposition to using the convention option.

    No one can accurately forecast exactly what a convention would propose, but we do know that continuation of the status quo will not eliminate the corruption and dysfunction sustained by the two-party plutocracy. The two major parties are rejected by 58 percent of the public for not effectively representing them, but a convention is far more attractive than forming a competitive third party. Many reforms can only be achieved through constitutional amendments that Congress will never propose; this is inarguable. Voting in elections to get reforms is passé. A hard truth to take, but one that an increasing number of Americans have begun to accept.

    Amending the Constitution in our modern world should compete with ordinary elections. With Internet news, blogging, email, tweeting, texting and myriad other forms of instant communication, holding a convention is a new way to satisfy public thirst for true reforms, not promises. Amending the Constitution can be done relatively quickly. Of the 27 amendments to the Constitution, seven took one year or less to become the law of the land because of public engagement. The 26th amendment (giving the right to vote to 18 year-olds) took only 3 months and 8 days to be ratified in 1971! Public pressure works. It will work for and against specific amendments. Americans deserve the constitutional opportunity that Congress has deprived them of.

    Americans must be taught this: Just by being in the Constitution the convention option demands public support. Citizens are obliged to support it. People cannot be allowed to have it both ways and be two-faced and hypocritical. Embrace the convention option or be openly and aggressively condemned for unpatriotic hypocrisy and behavior that undermines the sanctity of the Constitution and the rule of law, both crucial for maintaining the integrity of our republic.

    Trust is the crucial issue. So many Americans have lost trust in their government and politicians but far less so in their Constitution. Trusting the Constitution means trusting the Founders’ wisdom in providing the Article V convention option. They anticipated the day when citizens would lose trust in the federal government, which has surely arrived. The convention option bypasses Congress, the President and the Supreme Court; it gives power to the states and citizens. Wisely, ratification by the states is required for any proposed amendments from a convention, providing a hedge against dangerous amendments. When it comes to reform and making government work for we the people, the greatest risk for the nation is not using the convention option.

    What political powers on the left and right fear and oppose we the people must demand. They are guilty constitutional traitors. We must be courageous patriots. There is no room for compromise with convention opponents. We must shame and embarrass them; they are lousy citizens. The time to argue about specific amendments is when the convention is in session and delegates must contend with public sentiments and later when proposed amendments are considered for ratification by states.

    We cannot know with certainty whether holding a convention would revitalize the nation. But refusing to use the convention option as a constitutional path to reform disrespects and undermines our constitutional republic. The sorry state of the nation demands that we do more than just talk about it. This year every candidate for the House and Senate should be compelled to publicly support using the convention option. Lack of support for it should be grounds for defeating them.

    [A shorter version of this article was presented at the Thomas M. Cooley Law School Article V symposium in Lansing, Michigan on September 16, 2010; contact Joel S. Hirschhorn, a co-founder of Friends of the Article V Convention, through delusionaldemocracy.com.]

  2. Byron DeLear Says:

    In addition to the above developments, there was a recent symposium held at Cooley Law in which Mr. Hirschhorn presented.

    Info on that symposium can be found in the following article:

    Glenn Beck’s Mormon prophecy of the Constitution hanging by a thread

    Dana Milbank’s article two days ago, “Mormon Prophecy Behind Glenn Beck’s Message”, talks about some coded language Beck’s been using–supposedly a prophetic prediction made by the founder of Mormonism, Joseph Smith.

    From Milbank,

    “The phrase is often attributed to the Prophet Joseph Smith, founder of the Church of Jesus Christ of Latter-day Saints, or Mormon Church. Smith is believed to have said in 1840 that when the Constitution hangs by a thread, elders of the Mormon Church will step in — on the proverbial white horse — to save the country.

    “When the Constitution of the United States hangs, as it were, upon a single thread, they will have to call for the ‘Mormon’ Elders to save it from utter destruction; and they will step forth and do it,” Brigham Young, Smith’s successor as head of the church, wrote in 1855.”

    Hanging by a thread. Sounds like the sign of the times in so many ways. We all know profit-driven ‘news-entertainment’ is dominated by fear and sensationalism, so we should expect an abundance of apocalyptic story telling from pundits like Beck. But even after disregarding the truth-warping profit motive, there is still ample evidence to heed this ‘constitution hanging by a thread’ notion. Accordingly, the people are restless.

    In a recent poll by People for the American Way, 95% of those surveyed believe corporations spend money on politics to buy influence and elect people favorable to their financial interests. Further, 85% of voters say that corporations have too much influence over the political system today, while 93% say that average citizens have too little influence.

    This is not the “government of the people” the Founders and Framers envisioned–well, not really.

    The Founders actually did envision the current state of the nation. They could foresee an intractable situation befalling the Republic in which undue influence and corruption would become so entrenched into our political institutions, that elections–or any actions taken by the Federal Government–would be incapable of correcting America’s biggest problems. Sound familiar?

    What the designers of our constitution foresaw was the distinct possibility that the same kind of centralized tyrannical power they had just opposed and defeated (the British Crown and Parliament) could potentially materialize over time in the new nation. They unanimously agreed to incorporate a switch that could be flipped in the future to convene a group of citizen delegates charged with addressing what was broken.

    That switch is called an “Article V Convention”, and contrary to popular myth, it is not a self-destruct button. An Article V Convention allows citizen delegates to produce a roster of ideas for each state to consider to approve as a US Constitutional Amendment. There are sufficient protections built-in to prevent any kooky, radically partisan, or extreme ideas from surviving the two-step nomination and ratification process. If you believe in the brilliance of the Founders, you cannot presume to think that they would have been so idiotic as to put a poison pill right in the heart of the constitution.

    The convention clause was seen by the Framers as a necessary check-and-balance, and has the potential to reboot the Federal laptop that’s been locked-up and frozen for years. While banging on the keys may seem like it’s working (elections), if you really want to get something done, Article V is the reset switch.

    Why an Article V Convention cannot runaway and throw out the Constitution

    Two-thirds of the convention must vote to approve a suggested fix–and then a super-super majority of 75% of the state legislatures must independently vote to ratify each amendment. This 75% threshold is an exceedingly difficult task which allows for only the most robust and transpartisan ideas to survive the process and become law. Solutions delivered from the states to our nation via an amendatory convention occurs beyond the purview of Congress, outside of Washington DC. It’s a viable way for everyday citizens to say, “enough is enough”– and then have that actually mean something. The point is, elections and electeds may be unwilling or incapable of steering our ship of state away from the dangers of corruption spiraling our nation out of control–and this is precisely the reason for Article V’s existence.

    The idea of a people’s intervention to a Federal Government addicted to spending and power is gaining traction

    A group formed in 2007, Friends of Article V Convention (FOAVC.org), investigated the Congressional record to answer the question: how many times have the states applied for an Article V Convention?

    Unbelievably, at the time there was no central repository containing these convention requests–no collated record maintained by Congress. The procedure laid out in Article V commands Congress to call a convention to propose amendments when two-thirds of the states apply. No other requirements are needed. Some scholars think that the applications must contain a same-subject amendment, or be sent at the same time. This interpretation creates restrictions out of thin air. To artificially add non-existing stipulations to an amendment is called “construction”–which in this case–has been repudiated by multiple Supreme Court rulings.

    What the Friends discovered, is that there have been hundreds of applications submitted from all fifty states; and per the constitution, only 34 states need apply to trigger the non-discretionary call for an Article V Convention.

    Is Congress purposefully not calling the convention because they view it as a threat to their power?

    It’s certainly possible. Congress has sat on its hands and feigned to ignore the applications issue for at least a hundred years.

    Professor Christopher Trudeau and some others from Cooley Law felt that the legal doctrine of “Laches” may apply, which is “based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; neglect to assert a right or claim (the people demanding that Congress call an Article V Convention) that, together with lapse of time and other circumstances, prejudices an adverse party.” The argument is, since the first call was supposed to have happened in the early 1900s, we can’t use an accumulation standard for those older applications. The reality is, however, that there have been hundreds of applications since 1960 alone, which should trigger the call. Because there isn’t any precedent in regard to the nation’s first Article V Convention, the doctrine of Laches here is by no means established.

    The inherent power of the people resides in the convention

    Retired Michigan Supreme Court Justice, Judge Thomas Brennan, in his pivotal article, “Return to Philadelphia (1982)” paints a passionate depiction of the infinite well from which springs the authority of the people, embodied in the convention.

    “A convention is the last bastion of public sovereignty. It is perhaps the sole remaining device by which the people of the states can act together as the people of the United States; not as citizens or subjects of a supreme national government, but as the sovereign ultimate political authority from which springs the consent of the governed and the constitutional legitimacy of all public institutions and officers.”

    Judge Brennan and Cooley Law school, the largest law school in the nation, recently sponsored a symposium entitled, “Article V Empowers The People of All the States.” Speakers included co-founders of FOAVC, active and retired Federal judges, constitutional scholars, and law professors, each presenting their case to the eager ears of an audience chiefly made up of law students; aspiring lawyers.

    Bill Walker, a FOAVC co-founder, spoke about his lawsuit against Congress for failing to call a convention. Walker vs. Members of Congress went through the courts on appeal to the Supreme Court, where it was denied certiorari. It was denied because the Supreme Court only agrees to see a very small percentage of cases that requests review. The lower court’s ruling was upheld with the court essentially standing aside due to the political question doctrine. The judges did not feel it prudent to coerce Congress to call a convention, even though the constitutionally required number of Article V applications had been submitted by the states.

    In his presentation at the symposium Walker stated,

    1.A convention call is peremptory (ie without debate).
    2.There are sufficient applications already on record to cause a convention call.
    3.A convention call is based on a simple numeric count of applying states with no other terms or conditions such as recessions, same subject, contemporaneous and so forth.
    4.By refusing to obey the Constitution and so advocating the same in a public forum, the members of Congress violated their oaths of office and other federal criminal laws.
    “The Solicitor General of the United States acting in both his official capacity and as official attorney of record for all members of Congress, after consultation required by federal law with those members, formally and officially waived response to my brief. Thus, he formally and officially acknowledged what I had stated in my brief was and is correct as to fact and law. This is what I mean when I state the only group I’ve been able to persuade is the United States government as this is the only official government act on the convention call in United States history.”

    Judge James L. Ryan, a Senior Circuit Judge for the United States Sixth Circuit of Appeals, was asked at the symposium if he felt Congress was obligated to issue the call based on the evidence presented of the required number of convention applications having been submitted. He replied he didn’t have enough information to make an informed decision. If Judge Ryan, in public, had supported the idea that Congress was avoiding their constitutional obligations, as a sitting Federal Judge, he would be tying his hands to have to continue to investigate the issue to further determine the legal and potential criminal ramifications of Congress violating their of oaths of office by disregarding a clear constitutional directive. Many established lawyers, judges, politicians, are reticent to rock the boat; but this goes to the heart of our problems, doesn’t it?

    Another FOAVC co-founder, Joel Hirschhorn, unpacked several reasons why Congress has gotten away with not obeying the constitution,

    “Apparently, a combination of political corruption and public ignorance has allowed Congress to get away with this. Even among the millions of Americans that proudly declare their loyal allegiance to the Constitution, there is no recognition that unless they demand that Congress obey Article V, they are constitutional hypocrites. Congress has no right to unilaterally decide that it can ignore and disobey a part of the Constitution.”

    The arguments against a convention have been fielded, and the simple fact remains, the corrupting influences currently in power have everything to lose from a convention–while everyday Americans have everything to gain. As it is, if we allow for the teeter-totter of mainstream politics to continue to have its sway, we will have essentially conceded defeat. All the bailouts, unfavorable court rulings and corporate/political sell-outs point to one trajectory–they indicate, that indeed, the coup may be complete–we may have lost control of our country.

    But concerned citizens are bucking up, joining new initiatives, and sending the message that it’s time for the people to stage an intervention before its too late. An online effort called Convention USA, launched by Justice Brennan, is described as, “…an interactive, virtual convention for proposing amendments to the Constitution of the United States.” Term limits, balanced budget amendment, secure the vote–common sense ideas that in D.C. are usually always DOA.

    A mock convention chaired by Harvard Law professor Lawrence Lessig and Republican political advisor Mark McKinnon was recently staged at a “Coffee Party” meeting in Louisville, Kentucky. Hundreds of delegates took to reviewing ideas that were brought to the table through a town hall meeting format. Professor Lessig has been mobilizing support for an amendment convention in the wake of the Citizens United Supreme Court ruling which sanctioned unfettered corporate electioneering and relied heavily on the legal fiction of “corporate personhood”. As legal persons in the Citizens United ruling, corporations can support or oppose any candidates with unrestricted political contributions. Recently, after Citizens United, the Chamber of Commerce has been accused of funneling foreign contributions into US elections—clearly a violation of the basic principles of national security. With many major corporations being multi-national conglomerates, it is not entirely clear how foreign influence will be kept from muscling under the radar into our body politic, if we don’t seriously regulate the level at which corporations can buyout our democracy.

    Lessig’s “Call A Convention” website makes the pronouncement,

    “Democracy in America is stalled. From the Right and Left, citizens are increasingly coming to recognize that our democracy does not work as our Framers intended.”

    Things are happening, people are waking up to the fact that extraordinary times require extraordinary measures. If you’re in search of truly transpartisan solutions, and are not satisfied with electoral politics, check out this time-capsule gift from the Founders: the amendatory convention enshrined in Article V, an idea whose time has come–and whose design was scrupulously intended for present circumstance.

    The Mormon prophecy Glenn Beck has been consciously or unconsciously sounding, predates Joseph Smith, because the Founders saw it as well. They laid out a specific plan to deal with the catastrophic nature of a collapsing Republic. It would be good to see pundits, progressive, conservative, libertarian, take up the cause to spread awareness of this tool. An Article V Convention will be a rebirth of civic engagement and a means to reinvigorate our democracy–let the people drive the bus out of the ditch.

    • Jonathan Gardner Says:

      As a minor clarification, the White Horse Prophecy, or the “constitution hanging by a thread” you quoted above isn’t officially recognized by the church. The church officially claims that these words can’t be legitimately tied to Joseph Smith because of the reliability of the record and because there are some evidence that he might not have said it at all. (The author who recorded the prophecy did so many years after Joseph’s death, and there were other people present who had far better records who failed to mention this prophecy.) (See the official press release statement.)

      Whether Glenn Beck believes Joseph Smith said it or not, or whether he believes that the members of the LDS church will play a role in helping restore the constitution and thus rule by the people through law, is up to him, of course.

      I believe that if it comes down to only the elders of the LDS church, we’re in a much sorrier state than we ever thought we could ever be in. I can’t see our church being the sole beacon of hope in our political system. Instead, I put my trust in the vast majority of the American people, people who may vote democrat or republican or not at all, but who believe in the fundamental principles of self-governance. I welcome people of all faiths and all churches and encourage them all to rely on themselves to restore the constitution.

      I agree with your sentiment that calling an Article V Convention would be a massive wake-up call, not only for our sitting representatives but for the people, and it will show the people that they always had the power from day one to get the government they choose.

      I don’t want to live in a country where corporations run to the government for favors and special dispensations, and I am absolutely positive that the vast majority of the American people don’t want that either.

      I am going to ask the new state legislature to renew a call for a constitutional convention, and I am going to ask our new federal legislature to call the convention as soon as possible.

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