Title: The Final Constitutional Option
Original CoS Document (slug): the-final-constitutional-option
Login Required to view? No
Attached File: Article10-ThefinalOption_COSA102022.pdf
The Final Constitutional Option By Bob Berry, Regional Director for the Convention of States Projec
Created: 2024-02-08 13:53:28
Updated: 2025-02-08 19:00:00
Published: 2024-02-08 03:00:00
Converted: 2025-04-14T20:15:55.109159994
The problem, which
hardly needs stating,
is that the federal
government has become
the very monster the
Founders anticipated.
THE FINAL CONSTITUTIONAL OPTION
UPDATED NOVEMBER 2022
HAVING BEEN DORMANT for cen-
turies, a potent section in the U.S. Consti-
tution 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 dark-
ness ahead, the new reformers — support-
ers of Convention of States Action — have
begun to popularize this forgotten consti-
tutional 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 founding generation. Even today it
is hard to adequately comprehend the om-
nipresent and, thanks to the NSA, omni-
scient federal menace that hangs over every
aspect of life in 21st-century 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
bestseller, The Liberty Amendments: Re-
storing the American Republic, based his
ideas for reform on this less well-known
means by which amendments may be
proposed — a process that entirely out-
flanks Washington’s fixed fortifications.
Levin cogently argues that attempts at re-
form 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
amendment process. Article V establish-
es 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 proposed. From the beginning,
the states have relied on congressional su-
per-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
Convention for Proposing Amendments.”
The idea of using the amendments con-
vention 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 resolu-
tions — just one shy of the required two-
thirds of state legislatures, which would
have compelled Congress to issue a call for
the amendments convention.
That’s when the effort 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 expect-
ed was for “friendlies” from elsewhere on
the right to object to the idea in near hyster-
ics as a plot to render the Constitution 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’
rhetoric, that they had confused the Con-
vention for Proposing Amendments assem-
bly with a so-called plenary (full authority)
Constitutional Convention.
BBA advocates attempted to clarify the
difference between the types of conven-
tions by pointing out that, as sovereigns,
the states have never needed permission
from the Constitution to call an actual
Constitutional Convention. Indeed, the
only reason to invoke Article V would be
to self-limit the convention’s authority to
“proposing amendments,” as the assem-
bly’s name indicates.
Continued on back page
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.
Continued from front page
The critics would have none of it.
In appeals to the public, the critics insid-
iously left out any mention of the ratifica-
tion process by three-fourths of the states
— the implication being that once the pro-
ceedings began, there would be nothing
that could be done to hold it back when,
inevitably, extreme elements moved to dis-
solve 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 rat-
ification process altogether!
As preposterous as this notion was, the
accompanying 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 re-
scinding 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 research. Of particular interest to Pro-
fessor Robert G. Natelson were areas of
constitutional scholarship characterized
by a scarcity of research, poor research,
or, optimally, both.
Intrigued by the vestigial Convention
for Proposing Amendments mentioned
in Article V, Natelson was struck by the
paucity of modern-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 conven-
tions. This was added to his existing collec-
tion of material from each state’s ratifica-
tion convention as each considered whether
or not to approve the proposed 1787 Consti-
tution. A picture of early American conven-
tion tradition began to emerge.
Casting a wider net, he pulled in over 40
generally neglected Article V court deci-
sions, some of which had been argued be-
fore the Supreme Court. In a series of pub-
lications, Natelson churned out his findings
(available at www.articlevinfocenter.com),
which surprised many — including himself.
The research quickly became the gold
standard of scholarship about the pro-
cess, known formally as the “State-Ap-
plication-and-Convention” method of
amending the Constitution.
Natelson held that, far from being a
self-destruct mechanism, the Founders
meant for the process to be used in
parallel to the congressional method as
yet another “check and balance” within
the framework of the newly constituted
federal government.
Most importantly, Natelson drew a
strong distinction between the assembly
mentioned in Article V and the oft-men-
tioned Constitutional Convention. For
this reason, he is quick to correct anyone
mistakenly referring to the Convention
for Proposing Amendments as a “Con-
stitutional Convention.”
Natelson’s research trove smashed the con-
spiracy theories of the 1980s and has be-
come 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 moment the Article V
movement achieved critical mass.
The new reformers would do well to press
on with the case for state-initiated amend-
ments and ignore the tired conspiracy the-
ories of the past. Having been marginal-
ized 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 formidable and lives on Capitol Hill.
(540)441-7227 | CONVENTIONOFSTATES.COM | Facebook.com/ConventionOfStates | Twitter.com/COSproject