Convention of States

There are Amendments to the US Constitution proposed by some states to be resolved by a “never done before” method being referred to as the Convention of States or the Article V Convention. This process started with votes by some State Legislatures to request that Congress call a Constitutional Convention.  This method is not recommended.

All current Amendments to the US Constitution were ratified by the States after the Amendments were drafted by the US Congress. This method is recommended.

The following article below goes into detail: Some Thoughts on the Proposal Before the Legislature to Call a Convention Empowered to Change the United States Constitution, By Scott N. Bradley

The Constitutionally Defined Amendment Process - Article V of the United States Constitution provides for two methods by which the Constitution may be changed:

Two thirds of both Houses of Congress propose and three fourths of the state legislatures (or three fourths of the conventions called by the U.S. Congress as ratifying conventions) ratify the proposed amendments.

Two thirds of the states apply to Congress, and then Congress calls a convention, and the resulting amendments proposed by the convention are put before the state legislatures (or before ratifying conventions called by the Congress), and by one or the other means three fourths of those bodies ratify the proposed amendments.

To date, the first approach is the only process by which the Constitution has been amended.  The second process has elicited strongly worded warnings from many prominent legal minds regarding the risks that they associate with it.

Is the Limited Scope of a Convention Guaranteed?  It is interesting to note the proposers of a modern convention claim that a modern convention can and would be limited in scope.  Several things contradict that position.

When the 1787 Convention was called by the United States Congress, it was called as a limited convention that was charged and called "for the sole and express purpose of revising the Articles of Confederation," thereby rendering "the federal constitution adequate to the exigencies of government, and the preservation of the Union."

A modern dictionary defines the word "revise" thus: "to amend or to alter."  Noah Webster's 1828 American Dictionary defines revise: "1. To review; to re-examine; to look over with care for correction; as, to revise a writing; to revise a proof sheet.  2. To review, alter and amend; as, to revise statutes." 

By the definition in common use during the American founding era, it sounds like the assignment given to the 1787 Convention was "for the sole and express purpose of revising the Articles of Confederation," which was to "review, alter and amend" the then existing constitution, The Articles of Confederation, not to replace it with a new constitution written from scratch.  We may assume from the definitions that the assignment given to the 1787 Convention was not to discard the existing constitution and write another.  They were simply to amend it to make it function better.  It appears that they were given the exact assignment the promoters of an Article V-type Convention (by whatever name it is denominated) would have us believe could not possibly result in a "runaway" convention and an entirely new constitution.  But it did in 1787.  Regardless of how we interpret the definitions, we know the course they took in 1787, and an entirely new constitution resulted.

When the delegates gathered in Philadelphia in May of 1787, they recognized that in their role they were legally authorized to set the existing constitution aside and create an entirely new constitution.  Could this be used as a precedent by a modern convention as justification for a similar action?

Some during the ratification period of the new 1787 Constitution were convinced that the convention had become what would be termed in the modern vernacular a "runaway convention."  Patrick Henry was one who held this opinion:

"That they exceeded their power is perfectly clear...The federal convention ought to have amended the old system-for this purpose they were solely delegated.  The object of their mission extended to no other considerations."

Based upon the actual events that occurred in 1787, is there the slightest possibility that it could happen again?  Would wishful thinking and ivory tower debates prevent a modern convention from taking some action that amends the current Constitution out of existence once a convention was called?  Would it be possible to leave small vestiges of the current Constitution untouched while eviscerating the great portion of sound principles upon which our liberty has been preserved for the past two hundred plus years, thus technically complying with the requirement that the Constitution be only amended?

The proposal before the Legislature proposes to limit the Federal Government's power.  In the context of what we are considering, Founding Father Noah Webster defined "constitution" thus:

The established form of government in a state, kingdom or country; a system of fundamental rules, principles and ordinances for the government of a state or nation. In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.

Webster defined "paramount" as:  1. Superior to all others.  2. Eminent; of the highest order. Therefore, in its total, the United States Constitution is by definition a delegation of power to the national government.  In its entirety it defines the national government's power to act.  To pass a resolution that would bring about a constitution convention for the purposes of ". . . limiting the power and jurisdiction of the federal government . . ." (as is proposed in this resolution before the Legislature) inherently grants the proposed convention the authority to re-write and re-define the entire United States Constitution.  Honestly ask yourself: "What element within the Constitution would reasonably be exempted from such an open-ended assumption of power?"  It literally encompasses the entire concept of a constitution.

Historically, most of the resolutions seeking a constitution convention (by whatever name the advocates choose to denominate it) which have come before the Legislature have promoted the idea that they were single issue proposals, and that any convention which may be called as a result of these resolutions would be restricted to addressing that single issue, and therefore would not place broader issues in the Constitution at risk.  While this is a debatable supposition in those other resolutions, this current resolution has dropped all pretense that the proposed convention will be of limited scope.  With this current resolution before the Legislature, we need no longer pretend that the convention which would be called as a result of this resolution cannot create an entirely new constitution.

Consequently, this resolution must be considered as the most dangerous resolution of its type which has ever come before the Legislature.  This resolution is multi-pronged in its thrust to call a convention.  It purports to "impose fiscal restraints on the federal government," to "limit the power and jurisdiction of the federal government," and "limit the terms of office for its officials and for members of Congress."  It uses these innocuous-sounding euphemisms to inculcate benign impressions of the expansive swaths which may be cut through the United States Constitution if a convention for these purposes is called. 

If the Convention of 1787 could consider themselves as operating within their congressional charter to "revise" the then-existing constitution, the Articles of Confederation, by setting aside that constitution and creating an entirely new one, with a new process of ratification, to what lengths could a modern convention with such a charge go?  We do not really, absolutely know, but is that immense possibility worth the risk?

The proponents of this proposal cite their interpretation of Hamilton's statement in Federalist Number 85 as proof-positive that the convention he spoke of was intended to be a single-issue matter that would be focused upon and brought to closure without opening the entire Constitution to revision.  The proposed wording noted in #2, above, contradicts and calls into question their intention for this to be such a convention, thus removing the protective cover which they attempt to invoke upon their efforts and assuage the fears of those who see dangers in the broadness and all-inclusiveness of their proposed resolution.

The American Founders and Article V - Promoters of a modern convention contend that the 1787 Constitution was sold by the Founders to the ratifying states on the basis that they retained their ultimate authority over the federal government through their Article V amendment powers. It is noted that James Madison, in Federalist No. 43, specifically argued that states should use the power to correct errors in the Constitution. And Alexander Hamilton in the "final argument" of the Federalist Papers, in Federalist No. 85, said the Article V amendment process was the means by which the states would rein in an out-of-control federal government. Promoters of a modern convention contend that one cannot take the Constitution seriously and contend that Article V was not meant to be used. They would have us believe that Article V is a critical and "deal closing" element of the balance of power created by the Constitution.

Remember, Article V defines two ways to change the Constitution: The first way is the ONLY way it has been changed since it was ratified:  2/3's of both Houses of Congress pass a proposed amendment and then forward it to the States for ratification.  When 3/4's of the States ratify the amendment, it is part of the Constitution.  This method is a tried and true method.

The other way (which has never been done since the Constitution was ratified, but was the way the old Constitution---The Articles of Confederation---was thrown out) is a convention.  That process involves 2/3's of the States applying for (requesting) a convention.  When that happens, the Constitution says that Congress SHALL call a convention.  Upon reaching that required threshold of 2/3's of the States, the Congress shall call the convention, and the convention will go forward.

Protections Supposedly Afforded by the Current Arduous Ratification Process - While in their propaganda the advocates of this resolution to call a modern convention use the words of Patrick Henry to promote the illusion that the ratification bar is set so high that the probability of a bad amendment being ratified is extremely unlikely, a few facts from history must be considered.

The current ratification requirements of approval by three fourths of the states are held up as a protection against bad amendments.  Many who promote a modern convention claim that we have no worries about a bad amendment being adopted because any proposed amendment must be ratified by ¾'s of the states before becoming part of the Constitution.  They say the probability of a bad amendment making it through the hoops of ratification is extremely low.

FACT:  When the U.S. Congress called the Convention of 1787, the convention was called "for the sole and express purpose of revising the Articles of Confederation," thereby rendering "the federal constitution adequate to the exigencies of government, and the preservation of the Union."

Recall that Founding Father Noah Webster defined "REVISE" thus: "To review, alter and amend." - In spite of their charge to simply amend the then-existing Constitution, when the delegates gathered in Philadelphia in May of 1787, they recognized that in their role they were legally authorized to set the existing constitution aside and create an entirely new constitution.

As the 1787 Convention met, the "old" constitution, the Articles of Confederation, required 100% of the states to agree to changes, and were considered by the 1787 convention delegates too difficult to succeed under.  Consequently, without the prior approval of the Congress, the states, or the people, the 1787 Convention determined that ratification and implementation of the new Constitution they wrote would occur with ratification by only nine of the states.  Could we be absolutely certain that any new constitution brought forth by a modern convention would not include a new ratification process that would virtually guarantee its ratification?

Regarding the supposed safety found in the current constitution that 3/4's of the states must ratify any proposed changes to the constitution:  Following are excellent examples of bad examples of amendments that somehow met the requirement that three-quarters of the states ratify them.

The 14th Amendment: The Most litigated Amendment, with the most tawdry tyranny-driven ratification. The 16th Amendment:  Authorized the Income Tax. The 17th Amendment:  Destroyed the States' Seat at the

Table of the National Government (and violated the protection afforded the States in Article V "that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate"---because the Senate no longer represented the States, but, rather, represents the PEOPLE who elect them) by Direct Election of Senators. The 18th Amendment:  Prohibition of Alcoholic Beverages

All of this happened more than 100 years ago, when the general understanding of the base-line principles of the Constitution were far better understood than they are today.  Could such a thing happen today?  Could the states be bamboozled by slick marketing ploys and political shenanigans into adopting poorly-conceived amendments that came out of a modern convention?

Did the American Founders Encourage Another Convention? At the close of the 1787 Convention, after sitting through the arduous debates which resulted in the new constitution, Benjamin Franklin addressed the delegates, stating: "I doubt too whether any other Convention we can obtain, may be able to make a better Constitution."

In a letter to George Thurberville dated November 2, 1788, James Madison expressed his concern if another convention should be held, writing:  "If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the Congress appointed to administer and support as well as to amend the system; it would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partisans on both sides; it would probably consist of the most heterogeneous characters; would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. Under all these circumstances it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony, or terminate in the general good. Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America, and under all the disadvantages I have mentioned."

Proponents of a modern convention reject this as anything analogous to an Article V convention.  They claim Thurberville was simply calling for a brand new, start-from-scratch convention.  This is false.  Without the prior authorization of the congress, the states, or the people, the Constitution which resulted from the 1787 Convention established a new standard for ratification: Nine states (not the standard that was required under the Articles of

Confederation of all thirteen states).  That new standard of nine states had been met and exceeded by mid-summer 1788.  This Thurberville/Madison communication occurred in November 1788, months after the new constitution was considered ratified.  Under the newly ratified 1787 Constitution, the only option was to call an Article V convention as defined by the new constitution.

Also, a careful reading of the Madison statement will reveal that he specifically said: "revising [read amending] the Constitution" and ".amend the system". AMEND the system indicates that he did not interpret Thurberville's position as a proposal for a "start over" convention, but, rather, as a process that amended the newly ratified 1787 Constitution.  He was against that amendment process even in 1788!

The promoters of a modern convention argue that the term "General Convention" used by Madison in his response to Thurberville means something different than the type of convention which could be called under Article V of the Constitution, that it means a convention called for the specific purpose of creating a new constitution.  However, "general" was often used during the founding era as pertaining to the national government as the general government. If used in that way, the term applies to any national convention to deal with the national constitution.  To examine how the Founding Fathers used the term, we may examine how Founding Father Noah Webster defined the term in his1828 American Dictionary, which defines "general" thus:

 "Properly, relating to a whole genus or kind; and hence, relating to a whole class or order.  4. Public; common; relating to or comprehending the whole community; as the general interest or safety of a nation."

Regardless of the exact way he used the term, Madison expresses his concern about how another convention will overstep its charter, become extremely politicized, and become dangerous to the nation.  If Madison was concerned about the risks in his day, when all of the Founding Fathers were still living and able to lend their vast wisdom to a new undertaking, who would be so foolish to suggest that today we are in a political environment that is better suited to bring forth more sound doctrines of liberty and proper government?

Does the United States Congress have a Role Once Two Thirds of the States Apply? Promoters of a modern convention state that once the required threshold of two thirds of the states apply for a convention, Congress will simply call a convention without any further ado or meddling.  They advocate that Congress will have no further say, and that Congress is completely removed from establishing any of the rules of engagement for the convention.  Several things contradict this position:

Article I, Section 10, clause 3 of the United States Constitution states:  "No State shall, without the consent of Congress . . . enter into any Agreement or Compact with another State . . ." Congress has not given its consent for the states to agree together in any "Agreement or Compact" regarding the rules of engagement for any potential convention for changing the Constitution.  And they will not.  Congress will not delegate or abrogate its power in this matter.  They will not agree to the states rolling over this constitutionally delegated authority.

Article I, Section 8, clause 18 of the United States Constitution assures that Congress has the "necessary and proper" power to carry out its constitutional powers, and per Article V Congress has the power to call a convention.  Certainly, within the power to call, the Congress will exercise at least the following stipulations: Location of the Convention, Dates of the Convention, Delegate Allotment Allocated to the States (likely based upon Electoral College votes, or possibly by population---California with the largest count, to Wyoming with the smallest count)

Voting Procedures of the Convention - Protection of the Convention Delegates from Punitive Action Based upon their Activities/Votes in the Convention (Patterned after U.S. Constitution Article I, Section 6, clause 1).

The Congress WILL exercise its prerogative in the matter.  The Constitution does not allow for any another pre-defined "constitutional work-around" previously concocted by the states.  ANY other approach is subversive of the constitutionally defined process, and is therefore, by definition, unconstitutional.

The bi-partisan "Think Tank" that consults with Congress in matters such as constitutional issues is the Congressional Research Service (CRS).   In 2012, 2014, and 2016 Congress called upon the CRS to review the duties which would face Congress in the event two thirds of the states did apply for a convention.  The CRS wrote three very substantial and substantive white papers on the matter, and those papers advise Congress of their duties and powers as noted in points 1 and 2, above.  Any scenario in which Congress will not step up to its delegated power is not conceived.

Are there Different Types of Constitution Conventions? It has become popular for some advocates of a convention for the purpose of changing the United States Constitution to promote the idea that somehow a "Convention of States," or a "Conference of States" may be called, and they are not really a Constitution Convention, and therefore are less inherently dangerous than a convention of another name.  This is false.  In addition, it is important to note that neither of the terms "Convention of States," or "Conference of States" exists within the United States Constitution, so neither is a constitutionally-recognized approach to modify the Constitution.  Carefully read Article V of the United States Constitution to verify that the terms "Convention of States," and "Conference of States" are not found therein.

Some promote the idea that something called a "Convention of States," or an "Article V Convention," or a "Conference of States" is not a Constitution Convention, and thereby a more satisfactory and less inherently dangerous way to have a convention to modify the Constitution.  Again, this is at least a gross misunderstanding.  Article V sets forth the means by which a convention is called: two-thirds of the states APPLY and Congress SHALL CALL a Convention.  There is no "special" category of convention called - only a Convention.

Black's Law Dictionary is the definitive dictionary for legal terms.  Black's Law Dictionary defines a Constitutional Convention thus: "A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, or amending its constitution.  Art. V of U.S. Const. provides that a Constitutional Convention may be called on application of the Legislatures of two-thirds of the states."

Those promoting a so-called "Convention of the States" are seeking to call "A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, or amending its constitution."   That is the definition of a Constitution Convention.

Therefore, by definition, a convention called through the process noted in Article V of the United States Constitution IS a CONSTITUTIONAL CONVENTION.

Summary and a Few Concluding Thoughts - Without attempting to elucidate the HUNDREDS of other concerns that could be brought to bear regarding the dangerous numerous potential flaws which could prove fatal to this great nation if a Convention were to be held at this time of national political debauchery, perhaps I may offer a summary of a few thoughts of final truths worthy of honest consideration:

In his magnificent "Farewell Address," George Washington counseled: "If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.  But let there be no change by usurpation, for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

The American Founders NEVER advocated a Constitution Convention if the Constitution were being VIOLATED, they only advocated it if it were WRONG.  THERE IS NOTHING WRONG WITH THE CONSTITUTION.  WE HAVE SIMPLY STOPPED ABIDING BY IT.  ALL of the woes facing the nation which are trumpeted by modern convention advocates as problems demanding solutions that (they say) are only possible by changing the Constitution are a result of the fact that we are ignoring the plain English words of the Constitution and are usurping power not delegated.  The problem is the very thing Washington warned against: USURPATION.  All of the egregious burdens and problems which are currently heaped upon the nation would be resolved if we returned to the plain English words of the Constitution and vigorously and unerringly applied them.

No one (including the most ardent advocates of a convention) can really be certain the arguments made by modern advocates of a convention will hold water and be absolutely safe.  We have OPINIONS of prominent legal minds on both sides of the argument, but once the process is started rolling, there is no way to call it back.  On September 13, 1994, W. Cleon Skousen wrote the following to Phyllis Schlafly: "...you were undoubtedly right in sensing a great danger if we tried to apply Article V of the Constitution during a period of the most depraved political corruption in the entire history of our country."  Are we so foolish as to assume that today's environment is less acrimonious, divisive, and politically dangerous than 1994?

There is much evidence that the Convention of 1787 took a much more dramatic step than many anticipated they would in writing an entirely new constitution when they met.  Fortunately, those who gathered in Philadelphia in 1787 were honorable men who loved liberty and understood the great Americanist principles of individual God-given rights, that the purpose of government was to preserve those rights, that powers must be limited and enumerated, and that they must be checked and balanced and divided and subdivided if tyranny was to be prevented.  The men of 1787 were uniquely suited to bring forth the magnificent work they established.  And in numerous ways they recognized that the inspiration of God had been upon them as they sat and deliberated the magnificent precepts they incorporated into the United States Constitution.

Statesmen of the caliber of the American Founders are exceptionally rare today, and individuals of infinitely lesser caliber and character and understanding of the eternal principles of liberty will almost assuredly sit in any modern constitutional convention, with infinitely less desirable outcome!  Where in all the world today may we find even one or two statesmen of the character and understanding exhibited by George Washington, Benjamin Franklin, George Mason, James Wilson, James Madison, and the others who, under the inspiration of God, framed our marvelous Charter of Liberty: The United States Constitution?  We will search the world in vain for such individuals.  Who, today, will sit in the seats occupied by those who brought forth the Constitution of 1787?  NONE I would trust!

Are you willing to risk our Constitution based upon somebody's opinion that they are right?  There is no reason to approach this issue with what may become a "pull it up by the roots" approach.  There are sound constitutional solutions for all of the challenges this nation faces, and none of them require the potential loss of the Constitution.

The solution is a return to the constraints of power on the federal government which exist within the United States Constitution. The problem is not with the Constitution. The Constitution is not flawed. It does not need to be changed. The problem is that we have stopped applying the Constitution. We do not have to amend the Constitution to solve this problem, and we do not have to risk a convention to bring things back into proper order. The solution is to begin again to abide within the constraints so carefully defined within the plain English words of the United States Constitution. James Madison stated that the powers of the national government were "few and well defined." Perhaps, when the people of the nation again understand that fact, the nation's leadership will be compelled to abide by their oath to uphold the Constitution of the United States. 

The solution to the concerns promoted by advocates of a constitution convention are found not by applying Article V, but by applying Article VI of the Constitution.  Article VI requires all who hold office to "be bound by Oath or Affirmation, to support this [the United States] Constitution."  Let us work diligently to restore and apply the sound principles embodied in the United States Constitution, and make them popular again.  Please join with me in our effort to restore the understanding and application of our magnificent Constitution - a good government with few and well defined enumerated powers that are checked and balanced to prevent tyranny. We, the people, are responsible to do this, and we can.

Norb Leahy, Dunwoody GA Tea Party Leader