Title: Liberals Disinformation Campaign Against Article V
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Attached File: The_Liberal_Establishment’s_Disinformation_Campaign_Against_Article_V_—and_How_It_Misled_Conservatives.pdf
Created: 2021-08-05 16:20:47
Updated: 2022-08-05 23:00:00
Published: 2021-08-05 00:00:00
Converted: 2025-04-14T20:02:42.345326750
The Liberal Establishment’s Disinformation Campaign
Against Article V—and How It Misled Conservatives
By Robert G. Natelson1
Executive Summary
Some conservative organizations regularly lobby against using
the Constitution’s procedure for a “convention for proposing
amendments.” Those organizations may think they are defending the
Constitution, but in fact they are unwittingly repeating misinformation
deliberately injected into public discourse by their political opponents.
This paper shows how liberal establishment figures fabricated and spread
this misinformation. This paper also reveals the reasons they did so: to
disable a vital constitutional check on the power of the federal government.
i
1
The LiberaL esTabLishmenT’s DisinformaTion Campaign againsT arTiCLe V—anD how iT misLeD ConserVaTiVes
The Framers adopted the convention procedure
to ensure that Congress did not have a monopoly
on the amendment process. The Framers saw the
procedure as a way the people, acting through
their state legislatures, could respond if the federal
government became dysfunctional or abusive.
There is widespread public support for
amendments to cure some of the real problems
now plaguing the country. However, since repeal
of Prohibition, Congress repeatedly has refused
to propose any constitutional amendments
limiting its own power and prerogatives. When
reformers sought to check lavish congressional
pay raises, for example, they could get nothing
through Congress. Instead, they had to secure
ratification of an amendment (the 27th) that had
been formally proposed in 1789!
Such unresponsiveness would seem to be exactly
the occasion for which the Founders authorized
the convention for proposing amendments. Yet
a handful of conservative groups—including but
not limited to, the John Birch Society and Eagle
Forum—have uncompromisingly opposed any use
of the convention procedure to bypass Congress.
They assiduously lobby state legislatures to
reject any and all proposals for a convention, no
matter how worthwhile or necessary they may
be. This uncompromising opposition has become
a mainstay of those groups’ political identity and,
perhaps, a useful fundraising device.
Although these groups bill themselves as
conservative, their reflexive opposition to the
convention process regularly allies them with the
liberal establishment and with special interest
lobbyists who seek only to protect the status
quo. Since the 1980s, this strange coalition
has blocked all constitutional efforts to address
federal dysfunction. As a result that dysfunction
has become steadily worse. For example, their
long-held opposition to a balanced budget
convention is a principal reason America now
labors under a $26 trillion national debt.
Under Article V of the U.S. Constitution, any
constitutional amendment must be ratified by three
fourths of the states (now 38 of 50) to be effective.
Before an amendment can be ratified, however, it must be
proposed either (1) by Congress or (2) by an interstate task
force the Constitution calls a “convention for proposing
amendments.” This gathering is convened when the people
convince two thirds of the state legislatures (34 of 50) to pass
resolutions demanding it. The convention itself is a meeting
of the representatives of state legislatures—an assembly of
the kind traditionally called a “convention of states.”
2
Convention of StateS
THE ARGUMENTS AGAINST
A CONVENTION
AND THEIR SOURCE
Opponents present an array of stock arguments
against using the Constitution’s convention
procedure. One such argument—the claim
that “amendments won’t work”—has been so
resoundingly contradicted by history that it has
little credibility.2 The others can be distilled into
the following propositions:
• Little is known about how the process is
supposed to operate;
• a convention for proposing amendments would
be an uncontrollable “constitutional convention;”
• a convention for proposing amendments could
be controlled or manipulated by Congress
under the Constitution’s Necessary and Proper
Clause;3 and
• a convention for proposing amendments could
unilaterally impose radical constitutional changes
on America.
These arguments are largely inconsistent with
established constitutional law and with historical
precedent,4 and (as the reader can see) some are
inconsistent with each other.
Since repeal of Prohibition, Congress repeatedly has refused to propose
any constitutional amendments limiting its own power and prerogatives.
3
The LiberaL esTabLishmenT’s DisinformaTion Campaign againsT arTiCLe V—anD how iT misLeD ConserVaTiVes
This paper shows that these arguments did not
originate with the conservative groups that rely
on them. Rather, they were produced as part of a
disinformation campaign run by America’s liberal
establishment. Members of that establishment
injected these arguments into public discourse to
cripple an important constitutional check on the
federal government.
This disinformation campaign dates from the mid-
20th century. Its participants included members
of Congress who feared that a convention might
propose amendments to limit their power,
activist Supreme Court justices seeking to
protect themselves from constitutional reversal,
and left-of-center academic and popular writers
who opposed restraints on federal authority.
The campaign succeeded because its publicists
enjoyed privileged access to both the academic
and the popular media. The fact that many
conservatives swallowed the propaganda enabled
liberal activists to recede into the background
and rely on conservatives to obstruct reform.
SOME ADDITIONAL
CONSTITUTIONAL
BACKGROUND
The American Founders envisioned citizens and
states using constitutional amendments to prevent
federal overreach and abuse. They ratified the
Bill of Rights in 1791 precisely for this reason. By
the same token, in 1795 they ratified the 11th
amendment to reverse an overreaching Supreme
Court decision.
The Founders also recognized that federal officials
might resist amendments to curb their own power.
The convention procedure was designed as a way
to bypass those officials. Tench Coxe, a leading
advocate for the Constitution, explained the effect:
It is provided, in the clearest words,
that Congress shall be obliged to call a
convention on the application of two thirds
of the legislatures; and all amendments
proposed by such convention, are to be
valid when approved by the conventions or
legislatures of three fourths of the states. It
must therefore be evident to every candid
man, that two thirds of the states can always
procure a general convention for the purpose
of amending the constitution, and that
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.5
In adopting the convention mechanism, the
Founders well understood what they were doing.
Conventions among the states (and before
independence, among the colonies) had been
a fixture of American life for a century.6 The
Founding-Era record renders it quite clear that
a “convention for proposing amendments” was to
be a meeting of representatives from the state
legislatures, and that the procedure and protocols
would be the same as in prior gatherings.7
In the two centuries after the Founding, the
judiciary, including the U.S. Supreme Court,
decided over three dozen cases interpreting
Article V, and in doing so generally followed
historical practice. Thus, by the middle years of
the 20th century, the composition and protocols
of a convention for proposing amendments
should have been clear to anyone who seriously
examined the historical and legal record.
The trouble was that some people were not really
interested in the facts.
5
The LiberaL esTabLishmenT’s DisinformaTion Campaign againsT arTiCLe V—anD how iT misLeD ConserVaTiVes
TWENTIETH CENTURY
EFFORTS TO ADDRESS
FEDERAL OVERREACH
As the size, power, and dysfunction of the federal
government grew, many Americans turned to
the Founders’ solution: the convention process.8
The first 20th century effort for a convention to
address federal overreach began in 1939, with a
drive to repeal the 16th Amendment.9 By 1950,
that drive had garnered the approval of 18 states.
Another drive induced Congress to propose the
22nd Amendment, mandating a two-term limit
for the President.
Early in the 1960s, the Council of
State Governments suggested three
amendments: one to streamline Article
V, one to reverse Supreme Court
decisions forcing state legislatures to reapportion,
and one to check the Supreme Court by adding
a state-based tribunal to review that Court’s
decisions. In the late 1960s, there was another,
nearly-successful, push for a convention to
address the Court’s reapportionment cases.
In 1979, the first effort for a balanced
budget amendment began. Throughout
the next two decades there were
drives to overrule the Supreme
Court’s abortion ruling in Roe v.
Wade, to impose term limits
on members of
Congress, and to enact
other reforms. Some of these
movements enjoyed wide popular
support. The convention procedure was
endorsed by President Eisenhower, by President
Reagan, and (before he became a Supreme
Court Justice) by Antonin Scalia.10
Co
ng
re
ss
[sh
oul
d] r
etai
n co
ntrol
ove
r th
e c
on
ve
nt
io
n
pr
oc
es
s.
It
w
ill
pro
bab
ly b
e ar
gued
that
the v
oting
in a
ny c
onv
ent
ion
m
us
t b
e
by
s
ta
te
s,
sin
ce
th
e v
oti
ng
in
th
e o
rigi
nal C
onst
ituti
ona
l Co
nve
nti
on
wa
s b
y s
tat
es.
St
ate
le
gis
latu
res d
o not a
ccur
ate
ly
re
pr
es
en
t t
he
pe
opl
e of t
heir s
tate
s—t
ha
t a
m
ajo
rity
in
Ins
isten
ce wo
uld be t
horoughly ju
stified on an
alloca
tion o
f vo
ting
po
we
r
by
pop
ulat
ion r
ather
than by
states…to prev
ent racial a
nd oth
er di
scri
min
ati
on
.
N
o S
ena
tor or
Representative
is b
ou
nd
to
vo
te
for
a con
vention c
all
wh
ich
in
it
s f
or
m
fa
ils
to
sa
feg
uar
d
wh
at h
e bel
ieves to be vit
al nat
ion
al
int
ere
sts
.
If the P
resid
ent
be
lie
ve
d
th
e s
tru
ctu
re
and
ma
ndate
of the
“con
vent
ion”
sig
nif
ica
ntl
y w
ron
g,
a
nd d
an
ge
ro
us
to
th
e n
ati
ona
l we
ll-bei
ng, the
n he
wou
ld
su
re
ly
be
ju
sti
fie
d in
veto
ing the
Reso
lutio
n.
Charles Black, Yale law professor
and zealous defender of liberal
causes, penned a polemical article
in 1963 on the Article V process that
was lacking in history and case law.
If
all
th
is
ter
rai
n is
foug
ht over, t
hen the
Amer
ican
pe
op
le
wi
ll
su
rr
en
de
r t
hi
s u
lti
ma
te
po
we
r i
nt
o t
he
ha
nd
s o
f
a m
ino
rity
onl
y if t
hey wa
nt to, and
if the
y wa
nt
to
no
bo
dy
ca
n
st
op
th
em
.
5
6
Convention of StateS
THE RESPONSE FROM
THE ESTABLISHMENT:
COORDINATED
DISINFORMATION
During the 1950s, ’60s and ’70s, establishment
liberals were pleased with the growth of the
federal government and the activist Supreme
Court. They wanted no corrective amendments.
Rather, they felt threatened by conservative and
moderate efforts to use the convention process.
Liberals developed, therefore, a campaign to
effectively disable it.
Their project was highly successful. It not
only gained traction among liberals, but it
pitted conservatives against conservatives by
persuading many of them to abandon one of the
Constitution’s most important checks on federal
overreaching. The campaign resulted in the
defeat of every effort to propose amendments
to reform or restrain the federal government.
Its psychological and political force continued
unabated for decades.11
The story begins in 1951. Faced with a conservative
drive to repeal the 16th Amendment, liberal U.S.
Rep. Wright Patman (D.-Tex.) attacked it
as “fascist” and “reactionary.” He added the
unsupported assertion that a convention for
proposing amendments could not be limited—
that it could “rewrite the whole Constitution.”12
The obvious goal behind that statement was to
scare people into thinking that the convention,
instead of focusing on a single amendment, might
effectively stage a coup d’état.
A more coordinated campaign against Article
V began in 1963, with an article in the Yale Law
Journal. It was authored by a law professor named
Charles Black, also of Yale, a zealous defender of
liberal causes and of the activism of the Supreme
Court, then led by Chief Justice Earl Warren. The
occasion for Black’s article was the amendment
proposal of the Council of State Governments.
Despite Black’s position as a professor at one of
the nation’s premier law schools—and despite the
nature of the journal that published it—Black’s
article was polemical rather than scholarly. You
can deduce its tenor from the title: The Proposed
Amendment of Article V: A Threatened Disaster.13
On its face, Black’s article was responding to
the Council of State Government’s proposals.
In fact, his propositions extended much further.
Black objected to the whole idea of the states
being allowed to overrule Congress or the
Supreme Court. So he offered a wide-ranging
plan of constitutional obstruction. In a nutshell,
his position was as follows:
• The process enabled a tiny minority of the
American people to amend the Constitution
against the wishes of the majority, and
• if allowed to do so, the state legislatures might
radically rewrite the Constitution. They “could
change the presidency to a committee of three,
hobble the treaty power, make the federal
judiciary elective, repeal the fourth amendment,
Co
ng
re
ss
[sh
oul
d] r
etai
n co
ntrol
ove
r th
e c
on
ve
nt
io
n
pr
oc
es
s.
It
w
ill
pro
bab
ly b
e ar
gued
that
the v
oting
in a
ny c
onv
ent
ion
m
us
t b
e
by
s
ta
te
s,
sin
ce
th
e v
oti
ng
in
th
e o
rigi
nal C
onst
ituti
ona
l Co
nve
nti
on
wa
s b
y s
tat
es.
St
ate
le
gis
latu
res d
o not a
ccur
ate
ly
re
pr
es
en
t t
he
pe
opl
e of t
heir s
tate
s—t
ha
t a
m
ajo
rity
in
Ins
isten
ce wo
uld be t
horoughly ju
stified on an
alloca
tion o
f vo
ting
po
we
r
by
pop
ulat
ion r
ather
than by
states…to prev
ent racial a
nd oth
er di
scri
min
ati
on
.
N
o S
ena
tor or
Representative
is b
ou
nd
to
vo
te
for
a con
vention c
all
wh
ich
in
it
s f
or
m
fa
ils
to
sa
feg
uar
d
wh
at h
e bel
ieves to be vit
al nat
ion
al
int
ere
sts
.
If the P
resid
ent
be
lie
ve
d
th
e s
tru
ctu
re
and
ma
ndate
of the
“con
vent
ion”
sig
nif
ica
ntl
y w
ron
g,
a
nd d
an
ge
ro
us
to
th
e n
ati
ona
l we
ll-bei
ng, the
n he
wou
ld
su
re
ly
be
ju
sti
fie
d in
veto
ing the
Reso
lutio
n.
If
all
th
is
ter
rai
n is
foug
ht over, t
hen the
Amer
ican
pe
op
le
wi
ll
su
rr
en
de
r t
hi
s u
lti
ma
te
po
we
r i
nt
o t
he
ha
nd
s o
f
a m
ino
rity
onl
y if t
hey wa
nt to, and
if the
y wa
nt
to
no
bo
dy
ca
n
st
op
th
em
.
7
The LiberaL esTabLishmenT’s DisinformaTion Campaign againsT arTiCLe V—anD how iT misLeD ConserVaTiVes
make Catholics ineligible for public office, and
move the national capital to Topeka.”
To prevent such horrific developments, Black argued:
• that Congress should refuse to count state
legislative resolutions that did not comply with
standards he laid down;
• that “Congress [should] retain control over the
convention process,” and dictate allocation of
delegates and determine how they were selected; and
• that the President should veto any congressional
resolution calling a convention if the measure did
not meet Black’s standards.
It is clear to anyone familiar with the law and
history of Article V that Black did virtually no
research on the subject before putting pen to
paper. Not only did he make no reference to
the extensive American history of interstate
conventions, but he recited little of the case
law interpreting Article V. He also failed to
read carefully the Necessary and Proper
Clause, which actually grants Congress
no power over Article V conventions.14
Later the same year, William F.
Swindler, a law professor at the College
of William and Mary, published
an article in the Georgetown Law
Journal.15 Like Black’s contribution,
it was largely polemical and short on
history and case law.
Swindler claimed that the Council
of State Government’s proposed
amendments were “alarmingly regressive”
and would destroy the Constitution as we
know it: “For it is clear,” he wrote, “that the
effect of one or all of the proposals. . . would
be to extinguish the very essence of federalism
which distinguishes the Constitution from the
Articles of Confederation.” Like Black, Swindler
argued that Congress could and should control
the convention and impose obstacles to the
convention serving its constitutional purpose.
Indeed, Swindler went even further, maintaining
that because “only a federal agency (Congress,
as provided by the Constitution) is competent to
propose” amendments, the convention procedure
should be disregarded as “no longer of any effect.”
The placement of the Black and Swindler diatribes in
two of the nation’s top law journals can be explained
only by the authors’ institutional affiliations16 and/
or by the agenda harbored by the journals’ editors.
That placement enabled them to reach a wide
audience among the legal establishment.
Somewhat later, Chief Justice Warren, whose
judicial activism was one of the targets of the
Council of State Governments, mimicked Black
and Swindler with the absurd declaration that
“The
placement of
the Black and Swindler
diatribes in two of the nation’s
top law journals can be explained
only by the authors’ institutional
affiliations and/or by the agenda
harbored by the journals’ editors.
That placement enabled them to
reach a wide audience among
the legal establishment.”
8
Convention of StateS
its amendment drive “could soon destroy the
foundations of the Constitution.”17
When Senator Everett Dirksen (R.- Ill.) joined
the fight for an amendment partially reversing
the Warren Court’s reapportionment cases, his
liberal colleagues pushed back hard. Senators
Joseph Tydings (D.-Md) and Robert Kennedy
(D.-NY) followed Black’s lead and advanced
various “reasons” why Congress should
disregard state legislative resolutions it did not
care for.18 Senator William Proxmire (D.-Wis.)
and the liberal New York Republican, Senator
Jacob Javits pressed the claim that a convention
would be uncontrollable.19
Kennedy’s resistance was supplemented by other
opinion leaders associated with the Kennedy
clan. In 1967, Kennedy speech writer Theodore
Sorensen wrote a Saturday Review article in which
he repeated Black’s “minority will control the
process” argument. In congressional testimony
the same year, Sorensen speculated that an
Article V convention might “amend the Bill of
Rights . . . limit free speech . . . reopen the wars
between church and state . . . limit the Supreme
Court’s jurisdiction or the President’s veto power
or the congressional war-making authority.”20
In 1968, University of Michigan law professor
Paul G. Kauper contributed a piece to Michigan
Law Review that likewise displayed almost
complete disregard of Article V law and history.21
Kauper admitted that Congress could not refuse
to call a convention if 34 states applied for one.
But he asserted that “Congress has broad power
to fashion the ground rules for the calling of the
convention and to prescribe basic procedures
to be followed.” Kauper also stated that “The
national legislature is obviously the most
appropriate body for exercising a supervisory
authority. . .”—a conclusion in direct conflict with
Chief Justice Earl Warren (center), later parroted Black and
Swindler with the absurd declaration that a convention of the
states “could soon destroy the foundations of the Constitution.”
9
The LiberaL esTabLishmenT’s DisinformaTion Campaign againsT arTiCLe V—anD how iT misLeD ConserVaTiVes
the convention’s fundamental purpose as a device
to bypass Congress. Kauper added that Congress
could mandate that delegates be elected one
from each congressional district, revealing his
disregard of the Supreme Court opinion and
other sources22 that specifically identified the
gathering as a “convention of the states” rather
than a popular assembly.
In 1972, Black returned to the Yale Law Journal
to oppose what he termed the “national
calamity” threatened by a bill introduced in
Congress by Senator Sam Ervin (D.-N.C.).23
Ervin’s bill, while well intentioned, was almost
certainly unconstitutional because it was based
on an overly-expansive reading of the Necessary
and Proper Clause. But that was not Black’s
objection. Black’s objection was that the “bill
would make amendment far too easy.” Black
contended that the process permitted a minority
to force amendments on the majority, that state
legislatures should have no control over the
procedure, and that the President could veto the
congressional call.
Black’s 1972 article was characterized by the
same haste and lack of scholarly curiosity that
had characterized his 1963 piece. For example, in
defiance of precedent he claimed that governors
should be permitted to veto state Article V
resolutions. He also misinterpreted the founding-
era phrase “general convention,” assuming it
meant a gathering unlimited by subject. A minimal
amount of research would have informed him that
a “general convention” was one that was national
rather than limited to states in a particular region.
Finally, in arguing that the convention could not be
limited, Black stated that all legislative resolutions
for a convention adopted during the Constitution’s
first century were unlimited as to subject. This was
flatly untrue, and could have been disproved be
simply examining the resolutions themselves.24
10
Convention of StateS
It is apparent that the goal of such writings was not to
disseminate truth but to protect Congress and the
Supreme Court from constitutional accountability
for their actions. The campaign was successful in
that it helped ensure the defeat of the efforts to
propose a reapportionment amendment.25
In January, 1979, however, a new “national
calamity” threatened. The National Tax
Limitation Committee kicked off its drive for a
balanced budget amendment to limit somewhat
Congress’s bottomless line of credit. In response,
establishment spokesmen again resorted to the
same misinformation propagated in the 1960s.
Kennedy admirer and eulogist Richard Rovere
terrified the readers of the New Yorker magazine
with the specter of a convention that might
reinstate segregation, and even slavery;
throw out all or much of the Bill of Rights
. . . eliminate the Fourteenth Amendment’s
due process clause and reverse any Supreme
Court decision the members didn’t like,
including the one-man-one-vote rule; and
perhaps for good measure, eliminate the
Supreme Court itself.26
(Rovere failed to explain how 38 states could be
induced to ratify such proposals.)
Opponents amplified the histrionics by branding
the amendments convention with a different,
and more frightening, name. Rather than refer
to it by the name given by the Constitution—
“Convention for proposing Amendments”—
opponents began to call it a “constitutional
convention.” This re-labeling reinforced the
mental image of a junta that would not merely
propose an amendment or two, but re-write our
entire Constitution.
Throughout American history,
conventions of states (and
before them, of colonies)
have been convened for
many different purposes. But
only two are referred to as
“constitutional conventions”
because only those two
proposed a complete remodeling
of the political system. The
federal convention of 1787, which
drafted the federal Constitution,
was one of those conventions.
11
The LiberaL esTabLishmenT’s DisinformaTion Campaign againsT arTiCLe V—anD how iT misLeD ConserVaTiVes
Some background may help explain the audacity
of this re-branding. Throughout American
history, conventions of states (and before them,
of colonies) have been convened for many
different purposes. But only two are referred
to as “constitutional conventions” because only
those two proposed a complete remodeling of the
political system. They were the federal convention
of 1787, which drafted the federal Constitution,
and the 1861 Montgomery, Alabama gathering
that drafted the Confederate Constitution.
The other 30-plus interstate conventions were
summoned for more modest purposes. Among
these were four that gathered to propose
amendments or that did propose amendments:
(1) the Hartford Convention of 1780, which
recommended alteration of the Articles of
Confederation, (2) the Annapolis Convention
of 1786, called for the same purpose, (3) the
Hartford Convention of 1814, which promoted
several constitutional amendments, and (4) the
Washington Convention of 1861, which proposed
an amendment to stave off the Civil War. Although
not convened to Article V, these assemblies were
amendments conventions in every other respect.
Yet to my knowledge, none had ever been
referred to as a “constitutional convention.” They
were empowered only to suggest amendments,
not to write new constitutions. Through the re-
branding, however, Americans were encouraged
to believe that a mere amendments convention
was a constitutional convention.
Confusion between a “convention for proposing
amendments” and a constitutional convention
appears to be wholly a product of the 20th
century. I have found no 18th or 19th century
state resolutions, nor any reported 18th or
19th century state or federal court decision,27
referring to an amendments convention as a
“constitutional convention.” On the contrary,
the usual practice was to refer to a convention
for proposing amendments by its proper name or
as a “convention of the states” or by a variation
of the latter phrase. In other words, affixing the
“con-con” label on an amendments convention
was an effort to alter English usage.
Where did the “dis-informants” get the idea of
changing the convention’s name? Perhaps they
were inspired by a misunderstanding arising
during the movement for direct election of U.S.
Senators, and the manner in which opponents of
direct election seized on that misunderstanding.
In 1901 a congressional compiler gave the
erroneous title “constitutional convention” to a
state legislative resolution, and after 1903, a few
resolutions actually used that term. The most
famous example of how opponents capitalized
on the confusion was a 1911 speech of Senator
Weldon B. Heyburn (R.-Idaho). Senator
Heyburn passionately opposed direct election, so
to dissuade states from demanding a convention,
he argued that:
When the constitutional convention meets
it is the people, and it is the same people
who made the original constitution, and no
limit on the original constitution controls
the people when they meet again to consider
the Constitution.28
The Heyburn view was not legally sound and
seems not to have been persuasive at the time.
By the following year the applying states were
only one shy of the then-necessary 32 (of
48). The demand for a convention abated only
because the U.S. Senate yielded, and Congress
itself proposed a direct election amendment.
But the mid-20th century disinformation
campaign did change public perceptions: Many
people came think that a convention for proposing
amendments was a “con-con.” Professor Black bore
some of the responsibility for this development as
well. In his 1972 polemic he repeatedly referred
to an amendments convention as a “constitutional
12
Convention of StateS
convention.” He had not used the term in that
way in his 1963 article.
There were many additional contributions to
the mislabeling campaign, particularly after the
balanced budget drive began in 1979. An essay
that year by Lawrence Tribe, a liberal Harvard
law professor and Kennedy ally, referred to an
amendments convention as a “constitutional
convention.”29 Tribe also asserted that such a
gathering would be an “uncharted course,” and
he issued a long list of questions about Article V
Jared Soares/Redux
PROF. LAWRENCE
TRIBE ISSUED A LONG
LIST OF QUESTIONS
ABOUT ARTICLE V
TO WHICH, HE SAID,
“GENUINE ANSWERS
SIMPLY DO NOT EXIST.”
ALTHOUGH NEARLY
ALL THOSE QUESTIONS
HAVE SINCE BEEN
ANSWERED, CONVENTION
OPPONENTS STILL
COMMONLY PRESENT
STATE LAWMAKERS
WITH VARIATIONS ON
PROFESSOR TRIBE’S LIST.
13
The LiberaL esTabLishmenT’s DisinformaTion Campaign againsT arTiCLe V—anD how iT misLeD ConserVaTiVes
to which, he said, “genuine answers simply do not
exist.” Although nearly all those questions have
since been answered,30 convention opponents
still commonly present state lawmakers with
variations on Professor Tribe’s list.31
Gerald Gunther of Stanford University, yet
another liberal law professor, had clerked for Chief
Justice Earl Warren. Warren’s decisions had been,
of course, targets of some of the conservative
amendment drives. In 1979 Gunther published his
own tract branding an amendments convention
a “constitutional convention.”32 He further
asserted that the crusade for a balanced
budget amendment was “an exercise
in constitutional irresponsibility,”
and that the “convention
route promises uncertainty,
controversy, and divisiveness
at every turn.” Apparently
unaware of the Supreme Court’s
prior characterization of an
amendments convention as a
“convention of states,”
Gunther said the
assembly would be
popularly elected. While
claiming that “relevant
historical materials”
supported his arguments,
he offered relatively little
history to support them.
Yet another assault on
Article V published in
1979 came from the
pen of Duke University
law professor Walter
E. Dellinger. Dellinger
had clerked for Justice
Hugo Black (not to be
confused with Professor
Charles Black), one
of the stalwarts of the
activist Earl Warren/Warren Burger Supreme
Court. Dellinger later served as acting solicitor
general in the Clinton administration. He also
labeled a convention for proposing amendments
a “constitutional convention.”33
Like other writers in this field, Dellinger did little
original research but, like Charles Black, managed
to get his essay published in the Yale Law Journal.
Apparently the Journal was willing to compromise
its supposedly rigorous standards of scholarship
to accommodate such material. Like Charles
Black as well, Dellinger inaccurately
declared that all legislative resolutions
submitted during the Constitution’s
first century were unlimited as to
subject and asserted that any
resolution imposing subject-
matter limits was invalid.34
The establishment’s war against
Article V continued throughout
the 1980s as its spokesmen resisted
popular pressure for a balanced
budget amendment and for
amendments overruling
the activist Supreme Court.
Arthur Goldberg was
another member of the
Kennedy circle: President
Kennedy had appointed
him successively as
Secretary of Labor and
Supreme Court Justice.
In a 1983 article he
labeled an amendments
convention a “constitutional
convention” and declared
that its agenda would be
uncontrollable.35 He also
quoted out of context
part of a 1788 letter
written by James Madison
Supreme Court Justice Arthur
Goldberg quoted out of context
a 1788 letter written by James
Madison, attempting to show that
Madison opposed the Article V
convention process. Madison actually
supported the use of Article V for a
convention of the states. This was a
clear misuse of historical material,
but some anti-Article V activists
still follow Goldberg’s lead today.
14
Convention of StateS
in which Madison opposed a contemporaneous
effort by two states to call a convention to
completely rewrite the new Constitution. The
quotation was out of context because Madison’s
letter criticized only that specific effort, not the
process generally— a process Madison actually
supported. This was a clear misuse of historical
material by Goldberg, but some anti-Article V
activists still follow Goldberg’s lead today.
In 1986, New Jersey Governor Thomas Kean, a
liberal Republican, wrote an article characterized
by the usual hysteria: A Constitutional
Convention Would Threaten the Rights We
have Cherished for 200 Years.36 As the title
indicates, Kean applied the phrase “constitutional
convention” to an amendments convention.
Relying on the same out-of-context letter cited
by Goldberg, Kean stoked the fear that such a
convention might “run away.”
The same year, Senator Paul Simon (D.-Ill.), one
of the most liberal members of Congress, called
the convention process “a very dangerous path.”37
Twice in 1986 and again in 1988, Chief Justice
Warren Burger—a participant in Roe v. Wade
and other cases that belied his prior reputation
as a “conservative”—wrote letters opposing
what he called a “constitutional convention.”
Burger claimed the gathering might disregard its
agenda. He based the latter speculation on the
frequent, although inaccurate, assertion that the
1787 gathering did the same. Burger offered no
other support for his claims, and I have found
no evidence he ever researched the subject. He
certainly never published anything on it.
I believe Burger absorbed his anti-Article V views
from William F. Swindler. As mentioned earlier,
Swindler was the author of possibly the most
outrageous academic attack on the convention
process. Burger was a self-described personal
As the drive for a balanced
budget amendment started
to grow in earnest in 1979,
the liberal establishment
renewed efforts to push
the false “con-con”
narrative about
the Article V
amending
process.
15
The LiberaL esTabLishmenT’s DisinformaTion Campaign againsT arTiCLe V—anD how iT misLeD ConserVaTiVes
friend of Swindler and appointed him to two of
the Supreme Court’s advisory and administrative
committees.38 Burger apparently enjoyed
Swindler’s company, and upon Swindler’s death
Burger publicly eulogized him as “an analyst of
history and a historian of the first rank.”39
THE TURNING POINT
In the years since 2010, research by this author
and other constitutional scholars has recaptured
the history and law governing the amendments
convention process. Arguments against that
process have lost credibility among many
conservatives40 and moderates and among some
honest progressives as well. This is reflected in
a spate of formal state legislative demands for a
convention.41 As a result, establishment publicists
who previously could afford to remain quiet have
been forced to rally their own forces against the
movement for a convention.
Illustrative is a December 4, 2013 posting in
the Daily Kos, a left-wing website, which warns
of the “threat” of a convention and repeats the
Charles Black argument that it would represent
only a minority of the population.42 Illustrative
also is an op-ed column in the Washington
Post dated October 21, 2014. The column was
entitled, “A constitutional convention could be
the single most dangerous way to ‘fix’ American
Progressives and right-wing groups such as the John Birch Society use the
same stock anti-convention of states arguments to spread disinformation
about the important constitutional check on the federal government.
16
Convention of StateS
government.”43 As the title suggests, the author
opposed a convention using rhetoric almost
precisely identical to that employed by groups
such as the John Birch Society.
The author was no Bircher, however, but
Robert Greenstein, a former member of the
Clinton administration and an Obama ally, who
heads an influential left-wing policy center in
Washington, D.C. reportedly funded by socialist
financier George Soros.44 For reasons explained
in this paper, the similarity between Greenstein’s
argument and those of misguided conservative
groups is not accidental.
The identity of interest among left-wing and right-
wing opponents emerged in sharp relief during a
recent Montana legislative session. On February
2, 2015, a spokeswoman for the Montana
Budget and Policy Center, a “progressive” state
policy group with ties to Greenstein’s think tank,
sent an e-mail to Democratic lawmakers advising
them on how to defeat a proposed balanced
budget resolution. The spokeswoman’s “Topline
Message” (suggested talking points) closely
mirrored those of conservative opponents and
of Greenstein, including the use of the “con-
con” label. She further told Democratic state
lawmakers, “We strongly urge committee
members to AVOID talking about a balanced
budget amendment, instead focusing on the
lack of certainty in calling a convention.” She
suggested that liberal lawmakers direct questions
to John Birch Society lobbyists who would make
the liberals’ arguments for them.45
CONCLUSION
When conservatives and moderates use
the stock anti-convention arguments,
they merely repeat disinformation
injected into American political life by their political
opponents. The purpose of this disinformation was
to weaken or disable an important constitutional
check on the federal government.
In recent years, the inaccuracies spread in that
campaign have been corrected. Accordingly, many
conservative and moderate convention opponents
have become supporters. Groups that persist in
spreading misinformation have lost credibility.
To shore up the anti-convention position, therefore,
spokespeople for the liberal establishment are
now reemerging to rally their own allies with the
same stock arguments. Conservatives, moderates,
and responsible progressives should hold them
accountable for doing so.
Notes
1Robert G. Natelson, the Senior Fellow in Constitutional
Jurisprudence at the Independence Institute in Denver, was
a law professor for 25 years at three different universities.
He has written extensively on the Constitution for both the
scholarly and popular markets, and since 2013 has been cited
increasingly at the U.S. Supreme Court, both by parties and
by justices. He is the nation’s most published active scholar
on the amendment process, and heads the Institute’s Article
V Information Center. For a biography and bibliography, see
http://constitution.i2i.org/about.
2The Lamp of Experience: Constitutional Amendments
Work, http://constitution.i2i.org/2014/03/09/thelamp-of-
experience-constitutionalamendments-work/
3U.S. Const., art. I, § 8, cl. 18.
4For a survey of the law of Article V, see Robert G. Natelson,
A Treatise on the Law of Amendment Conventions: State
Initiation of Constitutional Amendments: A Guide for
Lawyers and Legislative Drafters (2014).
17
The LiberaL esTabLishmenT’s DisinformaTion Campaign againsT arTiCLe V—anD how iT misLeD ConserVaTiVes
5“A Friend of Society and Liberty,” Pa. Gazette, Jul.
23, 1788, reprinted in 18 Documentary History of the
Ratification of the Constitution of the United States, 277,
283. Coxe’s writings were at least as influential with the
general public as The Federalist Papers. He was a member
of Congress and Pennsylvania’s delegate to the Annapolis
convention, and the first Assistant Secretary of the Treasury.
By a “general convention,” Coxe meant a national rather
than a regional gathering.
6Robert G. Natelson, Founding-Era Conventions and the
Meaning of the Constitution’s “Convention for Proposing
Amendments,” 65 Fla. L. Rev. 615 (2013).
7Id.
8Liberals occasionally crusaded for amendments as well, but
by and large their clout in Congress, the bureaucracy, and the
courts was sufficient for their purposes.
9Philip L. Martin, The Application Clause of Article Five, 85
Pol. Sci. Q. 615, 623 (1970).
The Sixteenth Amendment did not, as some say, authorize the
federal income tax; it merely dropped the requirement that
federal income tax revenues be apportioned among the states
by population.
10Russell L. Caplan, Constitutional Brinksmanship (Oxford
Univ. Press 1988) [hereinafter “Caplan”], 74 (Eisenhower),
85 (Reagan), 71 (Scalia). There are reports that Scalia
changed his position after ascending to the Court.
11The disinformation has lost credibility in the last few
years, as explained below. In 1992, reformers did success
in obtaining ratification of the 27th amendment, limiting
congressional pay raises, but that amendment had been
proposed in 1789 as part of the Bill of Rights.
12Caplan, p.69.
13Charles L. Black, Jr., The Proposed Amendment of Article
V: A Threatened Disaster, 72 Yale L.J. 957 (1963). Black
engaged in similar histrionics in the title of another article:
Proposed Constitutional Amendments: They Would Return
Us to a Confederacy, 49 A.B.A J. 637 (1963).
14By its terms, the Necessary and Proper Clause applies
to the 17 preceding powers in Article I, Section 8 and to
powers granted to the government of the United States and
to “Officers” and “Departments.” A convention fits none of
those categories. See The Constitution’s Grants to Persons
and Entities Outside the Federal Government, http://
constitution.i2i.org/2014/12/18/theconstitutions-grants-
to-persons-andentities-outside-the-u-s-government/ and
No, the Necessary and Proper Clause Does NOT Empower
Congress to Control an Amendments Convention, http://
constitution.i2i.org/2014/08/23/n o-the-necessary-and-
proper-clause-doesnot-empower-congress-to-control-
anamendments-convention/.
15William F. Swindler, The Current Challenge to Federalism:
The Confederating Proposals, 52 Geo. L. J. 1 (1963)
16The overwhelming majority of law reviews are student-
edited. Because students are often unable to judge the quality
of articles submitted to them, the relative prestige of the
author’s academic institution is influential in the decision of
whether to accept a submission. This is an open secret among
law professors and supported by empirical research. Jonathan
Gingerich, A Call for Blind Review: Student Edited Law
Reviews and Bias, 59 J. Legal Educ. 269 (2009).
17Caplan, p. 74.
18Caplan, pp. 75-76
19Caplan, p. 76. Javits was liberal not just for a Republican,
but (like some of his GOP colleagues at the time) liberal in
an absolute sense. His voting record was regularly marked as
above 80% by the left-of-center Americans for Democratic
Action.
20Caplan, p. 147. See below for other comments by associates
and allies of the Kennedy clan.
21Paul G. Kauper, The Alternate Amendment Process: Some
Observations, 66 Mich. L. Rev. 903 (1968).
22Smith v. Union Bank, 30 U.S. 518, 528 (1831). For
other sources, see http://constitution.i2i.org/2014/03/28/
howdo-we-know-an-article-v-amendmentsconvention-is-
a-%E2%80%9Cconventionof-the-states%E2%80%9D-
because-boththe-founders-and-the-supreme-court-saidso/
23Charles L. Black, Jr., Amending the Constitution: A Letter
to a Congressman, 82 Yale L.J. 189 (1972)
24The 1832 resolution of Georgia and the 1833 resolution
of Alabama were both limited as to subject. The 1788
Virginia resolution and the 1864 Oregon resolution were
18
Convention of StateS
both arguably limited. Robert G. Natelson, Amending
the Constitution by Convention: Lessons for Today from
the Constitution’s First Century, 3, 5 & 7 (Independence
Institute, 2011), available at http://liberty.i2i.org/
files/2012/03/IP_5_20 11_c.pdf
25Martin, p. 628.
26Caplan, p. Viii.
27According to the Westlaw database.
28Caplan, p. 64.
29Lawrence H. Tribe, Issues Raised by Requesting Congress
to Call a Constitutional Convention to Propose a Balanced
Budget Amendment, 10 Pac.L.J. 627 (1979).
30Robert G. Natelson, The Article V Handbook 33-35 (2d
ed., 2013).
31See, e.g., http://www.eagleforum.org/alert/2011/pdf/
20Questions.pdf.
32Gerald Gunther, The Convention Method of Amending the
United States Constitution, 14 Ga. L. Rev. 1 (1979).
33Walter E. Dellinger, The Recurring Question of the
“Limited” Constitutional Convention, 88 Yale L.J. 1623
(1979).
34To give due credit: Four years later Dellinger also published
an article correctly pointing out that Article V issues were
justiciable in court. Walter E. Dellinger, The Legitimacy of
Constitutional Change: Rethinking the Amendment Process,
97 Harv. L. Rev 386 (1983)
35Arthur J. Goldberg, The Proposed Constitutional
Convention, 11 Hastings Const. L. Q. 1 (1983).
36Thomas H. Kean, A Constitutional Convention Would
Threaten the Rights We have Cherished for 200 Years, 1986
Det. C.L. Rev. 1087 (1986)
37Caplan, p. 85.
38Warren Burger, William F. Swindler: A Tribute from the
Chief Justice of the United States, 20 Wm. & Mary L.J. 595
(1979).
39William F. Swindler, 70, Dies; Scholar of U.S. Constitution,
New York Times, May 7, 1984, available at http://www.
nytimes.com/1984/05/08/obitu aries/william-f-swindler-70-
dies-scholarof-us-constitution.html.
40One example of support for a convention by conservative
and libertarian legal scholars and opinion leaders, including
some former skeptics, is the “Jefferson Statement,” http://
www.conventionofstates.com/the_jef ferson_statement.
41For a scorecard of recent developments, see https://www.
facebook.com/pages/FixWashington-By-Calling-an-Article-
VAmendmentsConvention/598865556818994.
42http://www.dailykos.com/story/2013/12/0
4/1260066/-Alert-Art-V-ConventionThreat-Grows-Dec-7-
2013-Assembly.
43http://www.washingtonpost.com/posteverything///
wp/2014/10/21/a-constitutionalconvention-could-be-the-
single-mostdangerous-way-to-fix-americangovernment/.
44http://sorosfiles.com/soros/2011/10/center -on-budget-
and-policy-priorities.html.
45The email can be read at http://constitution.i2i.org/
files/2015/03/OL oughlin-email.pdf. The language quoted
here was underscored for emphasis.
