Title: Article 10 - The final Constitutional Option
Original CoS Document (slug): article-10-the-final-constitutional-option
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Attached File: Article_10-FinalConstitutionalOption.pdf
Surge Article 10: Bob Berry outlines in this piece the beginnings of the modern Article V movement and where the “new reformers” might go in the future
Created: 2017-07-06 07:08:59
Updated: 2019-04-05 04:31:39
Published: 2017-07-17 14:00:00
Converted: 2025-04-14T19:23:30.231132152
Having been dormant for centuries, a potent
section in the U.S. Constitution is now in the
minds and on the lips of a new generation of
reformers who are determined to keep the
nation out of an abyss. As America stares
hard at the darkness ahead, the new reform-
ers — supporters of The Convention of States
Project — have begun to popularize this for-
gotten constitutional provision that might
well become Official Washington’s undoing.
The problem, which hardly needs stating, is
that the federal government has become the
very monster the Founders anticipated. Quite
likely, the beast we face is far beyond anything
that could have been imagined by the found-
ing generation. Even today it is hard to ade-
quately comprehend the omnipresent and,
thanks to the NSA, omniscient federal menace
that hangs over every aspect of life in 21st-cen-
tury America.
The Founders’ concern that power would be
consolidated at the federal level is dealt with
in Article V of the U.S. Constitution.
Author Mark Levin, in his blockbuster best-
seller, The Liberty Amendments: Restoring the
American Republic, based his ideas for reform
on this less well-known means by which
amendments may be proposed — a process
that entirely outflanks Washington’s fixed for-
tifications. Levin cogently argues that attempts
at reform from within Washington are futile.
Obviously, what is needed is a way to trump
the Beltway ruling class from without.
Enter Article V, which prescribes the amend-
ment process. Article V establishes the
amendment process as a two-phase affair:
proposal, followed by ratification of three-
fourths of the states. The states have no way
to ratify that which has not first been pro-
posed. From the beginning, the states have re-
lied on congressional super-majorities to do
the proposing.
But the Founders knew that Congress would
be loath to propose anything that would limit
federal power, so they included a way for the
states to propose amendments in an ad hoc
assembly that Article V styles as “A Conven-
tion for Proposing Amendments.”
The idea of using the amendments conven-
tion assembly has surfaced from time to time
in U.S. history — most recently in the 1980s,
with the movement to propose a Balanced
Budget Amendment (BBA). The effort peaked
with 33 states passing resolutions — just one
shy of the required two-thirds of state legisla-
tures, which would have compelled Congress
to issue a call for the amendments convention.
That’s when the effor t took a bizarre
detour — into oblivion.
The BBA advocates of the 1980s, including
then-President Reagan, were decidedly of the
political right. The last thing anyone in the
movement expected was for “friendlies” from
elsewhere on the right to object to the idea in
near hysterics as a plot to render the Constitu-
tion null and void. The unlikely opponents,
while not necessarily opposed to a BBA, con-
demned in no uncertain terms the use of the
amendments convention to propose it. It
quickly became evident, from the critics’ rhet-
oric, that they had confused the Convention
for Proposing Amendments assembly with a
so-called plenary (full authority) Constitu-
tional Convention.
BBA advocates attempted to clarify the differ-
ence between the types of conventions by
pointing out that, as sovereigns, the states
have never needed permission from the Con-
stitution to call an actual Constitutional Con-
vention. Indeed, the only reason to invoke Ar-
ticle V would be to self-limit the convention’s
authority to “proposing amendments,” as the
assembly’s name indicates.
The critics would have none of it.
In appeals to the public, the critics insidiously
The Final Constitutional Option
Bob Berry, Regional Director for Convention of States Project
Continued to back page
The problem, which hardly
needs stating, is that the
federal government has
become the very monster
the Founders anticipated.
Continued from front page
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CONVENTIONOFSTATES.COM | Facebook.com/ConventionOfStates | Twitter.com/COSproject
left out any mention of the ratification process
by three-fourths of the states — the implica-
tion being that once the proceedings began,
there would be nothing that could be done to
hold it back when, inevitably, extreme ele-
ments moved to dissolve the Constitution.
When challenged on this, the foes weaved the
assertion into their conspiracy theory that the
out-of-control assembly would simply declare
its own sovereignty and dispense with the rati-
fication process altogether!
As preposterous as this notion was, the ac-
companying slogan was more effective: “We
don’t need a new Constitution!” Gobsmacked,
the BBA proponents could only look on as
state legislators made for the tall grass. One by
one, states began rescinding BBA resolutions.
As a postscript to this sad chapter, it should be
noted that by the late 1980s, the national
debt had just topped $2 trillion. An effective
BBA at that time could have stopped the
bleeding that, by any objective measure, has
become an existential threat.
The Professor
In 2009, an academic from the University of
Montana was surveying opportunities for re-
search. Of particular interest to Professor
Robert G. Natelson were areas of constitu-
tional scholarship characterized by a scarcity
of research, poor research, or, optimally, both.
Intrigued by the vestigial Convention for Pro-
posing Amendments mentioned in Article V,
Natelson was struck by the paucity of mod-
ern-day scholarship on the topic, despite an
abundance of original source material.
Quietly, he set to work.
Before long, Natelson had acquired nearly all
of the journals of founding-era conventions.
This was added to his existing collection of
material from each state’s ratification conven-
tion as each considered whether or not to ap-
prove the proposed 1787 Constitution. A pic-
ture of early American convention tradition
began to emerge.
Casting a wider net, he pulled in over 40 gen-
erally neglected Article V court decisions,
some of which had been argued before the
Supreme Court. In a series of publications,
Natelson churned out his findings (available
at www.articlevinfocenter.com), which sur-
prised many — including himself.
The research quickly became the gold stan-
dard of scholarship about the process,
known formally as the “State-Application-
and-Convention” method of amending
the Constitution.
Natelson held that, far from being a self-de-
struct mechanism, the Founders meant for the
process to be used in parallel to the congres-
sional method as yet another “check and bal-
ance” within the framework of the newly con-
stituted federal government.
Most importantly, Natelson drew a strong dis-
tinction between the assembly mentioned in
Article V and the oft-mentioned Constitu-
tional Convention. For this reason, he is quick
to correct anyone mistakenly referring to the
Convention for Proposing Amendments as a
“Constitutional Convention.”
Natelson’s research trove smashed the con-
spiracy theories of the 1980s and has become
the intellectual base of the resurgent Article V
movement that has been joined by Levin and
other prominent reformers. When the history
is written, it will record that this was the mo-
ment the Article V movement achieved criti-
cal mass.
The new reformers would do well to press on
with the case for state-initiated amendments
and ignore the tired conspiracy theories of the
past. Having been marginalized to an almost
comic degree, the foes of yesterday have been
effectively dispatched.
When a battle is won, it is wise to move to the
next battle, for the waiting opponent is formi-
dable and lives on Capitol Hill.
The new reformers would do
well to press on with the case
for state-initiated amendments
and ignore the tired conspiracy
theories of the past.