Title: Five Myths About An Article V Convention
Original CoS Document (slug): five-myths-about-an-article-v-convention
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Five Myths About An Article V Convention By Rita Peters, Esq. National Legislative Strategist for Convention of States Actio
Created: 2024-02-08 14:02:53
Updated: 2025-02-08 19:00:00
Published: 2024-02-08 00:00:00
Converted: 2025-04-14T20:16:06.109830401
Article V’s convention process
is part of the beautiful
constitutional machinery built
to protect the states and the
people from an overreaching
federal government.
FIVE MYTHS ABOUT
AN ARTICLE V CONVENTION
Rita Dunaway, Esq., National Legislative Strategist for Convention of States Action
Updated November 2022
THE CONSTITUTIONAL boundaries
separating the three federal branches
and setting outer limits on their power
are barely visible anymore. Many
Americans are turning toward Article
V of the Constitution to restore those
boundaries. Constitutional amendment
is strong medicine, to be sure, but it is the
medicine that our Founders prescribed
for the disease of federal overreach that is
otherwise terminal to our Republic.
Here are five myths about the Article
V antidote and its side effects.
1. An Article V convention is a “Consti-
tutional Convention” or “Con-Con.”
This point can get confusing, because Ar-
ticle V is a provision of the Constitution,
so a convention held pursuant to its terms
could be described as “constitutional” in
that sense. But what most people mean
when they describe an Article V conven-
tion as a “Con-Con” is that it is the same
type of gathering as the one in 1787 that
produced our Constitution. And that im-
plication is clearly wrong.
The distinction between the Philadelphia
Convention of 1787 and a convention held
pursuant to Article V lies in the source of
authority for each. The states gathered in
1787
pursuant to their residual powers as
individual sovereigns—not pursuant to any
provision of the Articles of Confederation
for proposing amendments.
An Article V convention, on the other
hand, derives its authority from the
terms of Article V itself and is therefore
limited to proposing amendments to the
Constitution we already have, pursuant
to the prescribed procedures.
2. We have no idea how an Article V
convention would operate.
Article V itself is silent as to the pro-
cedural details of a convention, leading
some to speculate that we are left clue-
less as to how the meeting would func-
tion. But while it’s true that there has
never been an Article V convention, per
se, the states have met in conventions
an estimated 40 times. There is a clear
precedent for how these meetings work.
In fact, many of the Framers had
attended one or more conventions,
and the basic procedures were always
the same. For instance, voting at an
interstate convention is always done as
states, with each state getting one vote,
regardless of population or the number
of delegates in attendance (that’s
why it’s a convention of states—not a
convention of delegates).
The more detailed, parliamentary rules
of the convention are decided by the
delegates at the convention itself.
3. The topic of an Article V convention
cannot be limited, so convention
delegates could re-write the entire
Constitution once they assemble.
Continued on back page
Article V’s convention
process is part of the
beautiful constitutional
machinery built to protect
the states and the people
from an overreaching
federal government.
Continued from front page
If states weren’t free to define the scope
of an Article V convention, then Ameri-
ca would have already witnessed many
of them. Over the course of our nation’s
history, states have filed over 400 appli-
cations for Article V conventions. The
reason we haven’t had one yet is because
there have never been 34 applications re-
questing a convention on the same topic.
Moreover, this proposition makes no
sense from a historical, practical or legal
perspective. In every interstate conven-
tion ever held, there was always a spec-
ified topic or agenda for the meeting.
Practically speaking, some limitation on
the topic is necessary in order for the state
legislatures to provide instructions to the
delegates they send as their agents (states
always instruct their delegates).
4. Congress would control an Article
V convention.
Anyone who has read James Madison’s
record of the Philadelphia Convention
proceedings knows that the very reason
the drafters added the convention meth-
od of proposing amendments to Article
V was to give the states a way to bypass
Congress— which has its own, express
power to unilaterally propose amend-
ments. They would never have given
Congress control over both methods.
Congress only has two powers related to
the convention: to issue the formal call,
setting the date and location of the con-
vention once 34 similar applications are re-
ceived, and to choose between two meth-
ods of state ratification for any proposals
offered by the convention. That’s it.
In fact, at least one federal court has de-
finitively ruled that Congress cannot use
any of its Article I powers—including its
power under the Necessary and Proper
Clause— to affect Article V procedures.
5. The Article V convention process
has no safeguards to protect our
Constitution from rogue delegates or
big-money special interest groups.
To the contrary, the process is so well-safe-
guarded that it has proven incredibly dif-
ficult to invoke! There are numerous, re-
dundant safeguards on the process.
First, the topic specified in the 34 appli-
cations that trigger the convention act as
an initial limitation on it. These applica-
tions are the very source of authority for
the convention, so any proposals beyond
their scope would be out of order.
Second, state legislatures can recall any del-
egates who exceed their authority or instruc-
tions. Convention delegates are the agents
of their state legislature and are subject to
its instructions. As a matter of basic agency
law, any actions taken outside the scope of a
delegate’s authority would be void.
But the final and most effective protection
of the process is the simple fact that it takes
38
states to ratify any amendment proposed
by the convention. This means that it would
only take 13 states to block any ill-conceived
or illegitimately advocated proposal.
Article V’s convention process is part of
the beautiful constitutional machinery
built to protect the states and the people
from an overreaching federal govern-
ment. It is time for us to use it.
Originally published on TheBlaze.com
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