Title: The Myth of a Runaway Amendments Convention
Original CoS Document (slug): the-myth-of-a-runaway-amendments-convention-1
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Attached File: Article7-TheMyth_COSA102022.pdf
Created: 2024-08-23 12:03:47
Updated: 2024-08-23 12:03:47
Published: 2024-08-23 03:00:00
Converted: 2025-04-14T20:22:25.841854629
The Founders created the
convention for precisely
the kind of situation we
face now.
THE MYTH OF A RUNAWAY AMENDMENTS CONVENTION
The Founders bequeathed to Americans a
method to bypass the federal government and
amend the Constitution, empowering two-
thirds of the states to call an amendments
convention. In the wake of Mark Levin’s
bestselling book, The Liberty Amendments,
proposing just such a convention, some
have raised entirely unnecessary alarms.
Surprisingly, a few of the leading lights of
conservatism have been among the alarmists.
But their concerns are based on an incomplete
reading of history and judicial case law.
Phyllis Schlafly is a great American and a
great leader, but her speculations about the
nature of the Constitution’s “convention for
proposing amendments” are nearly as quaint
as Dante’s speculations about the solar system.
Those speculations simply overlook the last
three decades of research into the background
and subsequent history of the Constitution’s
amendment process. They also ignore how
that process actually works, and how the
courts elucidate it.
Article V of the Constitution provides for a
“convention for proposing amendments.” The
Founders inserted this provision to enable the
people, acting through their state legislatures,
to rein in an abusive or runaway federal
government. In other words, the Founders
created the convention for precisely the kind
of situation we face now.
Mrs. Schlafly doesn’t think we know much else
about the process. She writes, “Everything
else about how an Article V Convention would
function, including its agenda, is anybody’s
guess.”
But she’s wrong. There is no need to guess.
There is a great deal we know about the
subject.
The “convention for proposing amendments”
was consciously modeled on federal
conventions held during the century leading
up to the Constitutional Convention.
During this period the states — and before
Independence, the colonies — met together on
average about every 40 months. These were
meetings of separate governments, and their
protocols were based on international practice.
Those protocols were well-established and are
inherent in Article V.
Each federal convention has been
called to address one or more discrete,
prescribed problems. A convention “call”
cannot determine how many delegates
(“commissioners”) each state sends or how
they are chosen. That is a matter for each state
legislature to decide.
A convention for proposing amendments is a
meeting of sovereignties or semi-sovereignties,
and each state has one vote. Each state
commissioner is empowered and instructed
by his or her state legislature or its designee.
As was true of earlier interstate gatherings,
the convention for proposing amendments
is called to propose solutions to discrete,
preassigned problems. There is no record of
any federal convention significantly exceeding
its pre-assigned mandate — not even the
Constitutional Convention, despite erroneous
claims to the contrary.
The state legislatures’ applications fix the
subject-matter for a convention for proposing
amendments. When two-thirds of the states
apply on a given subject, Congress must call
the convention. However, the congressional
call is limited to the time and place of meeting,
and to reciting the state-determined subject.
In the unlikely event that the convention
strays from its prescribed agenda (and the
commissioners escape recall), any “proposal”
they issue is ultra vires (“beyond powers”) and
void. Congress may not choose a “mode of
This article was published in 2008 prior to
Mrs. Schlafly’s passing.
Robert Natelson, Independence Institute’s Senior Fellow in Constitutional Jurisprudence
and Head of the Institute’s Article V Information Center
Continued on back page
ratification” for that proposal, and the
necessary three-quarters of the states would
not ratify it in any event.
Contrary to Mrs. Schlafly’s claim that “Article
V doesn’t give any power to the courts to
correct what does or does not happen,” the
courts can and do adjudicate Article V cases.
There has been a long line of those cases from
1798 into the 21st century.
“But,” you might ask, “Will the prescribed
convention procedures actually work?“
They already have. In 1861, in an effort to
prevent the Civil War, the Virginia legislature
called for an interstate gathering formally
entitled the Washington Conference Convention
and, informally, the Washington Peace
Conference. The idea was that the convention
would draft and propose one or more
constitutional amendments that, if ratified,
would weaken extremists in both the North
and the South, and thereby save the Union.
This gathering differed from an Article V
Convention primarily in that it made its
proposal to Congress rather than to the states.
In virtually every other respect, however, it
was a blueprint for an Article V convention.
When the convention met in Washington,
D.C., on February 4, 1861, seven states already
had seceded. Of the 26 then remaining in the
Union, 21 sent committees (delegations).
The conference lasted until February 27,
when it proposed a 7-section constitutional
amendment.
The assembly followed to the letter the
convention rules established during the
18th century—the same rules relied on
by the Constitution’s Framers when they
provided for a Convention for Proposing
Amendments. Specifically:
•
The convention call fixed the place,
time, and topic, but did not try to dictate
other matters, such as selection of
commissioners (delegates) or convention
rules.
•
At the convention, voting was by state.
One vote was, apparently inadvertently,
taken per capita, but that was quickly
corrected.
•
The committee from each state was
selected in the manner that state’s
legislature directed.
•
The conclave adopted its own rules
and selected its own officers. Former
President John Tyler served as president.
•
The commissioners stayed on topic.
One commissioner made a motion
that was arguably off topic (changing
the President’s term of office), but
that was voted down without debate.
Congress subsequently deadlocked over
the amendment, but the convention itself
did everything right: It followed all the
protocols listed above, and it produced a
compromise amendment. Although the
convention met in a time of enormous stress,
this “dry run” came off well, with none of
Mrs. Schlafly’s speculative “horribles.”
In any political procedure, there are always
uncertainties, but in this case they are far
fewer than predicted by anti-convention
alarmists. And they must be balanced against
a certainty: Unless we use the procedure
the Founders gave us to rein in a runaway
Congress, then Congress will surely continue
to run away.
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In any political procedure,
there are always
uncertainties, but in this
case they are far fewer than
predicted by anti-convention
alarmists.