Article V: Defend Not Amend
by Jason Mrochek on August 7, 2017 at 3:48 PM
It is called by many names: Constitutional Convention, Con-Con, Convention of States, Article V Convention.
But just because we can have one, doesn’t mean we should have one. In fact, the opposite is true.
Fox News published an article in their Politics section entitled “States’ rights advocates eye convention to bypass Congress, amend Constitution.” As the title implies, the article discusses the efforts by what they refer to as “States’ Rights advocates” to call for a “convention of states.” Right out of the gate, the deception begins–be it intentional or simply due to ignorance and lazy reporting.
With all of these references to the states, you would think that an Article V Convention (as it is most precisely called) is controlled by the states. However, this is not the case.
Let’s review exactly what Article V of the U.S. Constitution says.
“The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents, and purposes as part of this Constitution when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” Article V, U.S. Constitution
So there are two phases to the amendment process.
A) Amendment Phase
B) Ratification Phase
Additionally, there are 4 types of actors involved.
- State Legislatures
- National Convention
- Conventions in the States
Let us set aside the case in which Congress proposes amendments, since that is not being discussed in this article. The next case in which an amendment can be proposed initiates with the state legislatures.
“The Congress… on the application of the legislatures of two-thirds of the several states shall call a convention for proposing amendments…”
This is the “convention” that is referred to when you hear all the various names of an Article V Convention including “Convention of States.” And this is where the involvement of the states ends until the ratification phase. While proponents of an Article V Convention attempt to deceive the general public (and uninformed state legislators) into thinking that a “Convention of the States” is comprised of the several states, it is not the case at all.
Notice that in the language of Article V, two-thirds of the state legislatures must apply, but Congress is the actor who “call[s] a convention for proposing amendments.” This is a significant point.
How are the delegates selected? What are the rules of the convention? How many votes does each state or delegate receive?
For the answers to these, we need to refer to another clause of the U.S. Constitution–specifically Article I, Section 8, Clause 17–otherwise known as the “Necessary and Proper” clause.
“The Congress shall have power…To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” U.S. Constitution, Article I, Section 8, Clause 17 (Emphasis added)
As you can see, because the power of Congress to call an Article V Convention is vested by the Constitution, Congress may decide how delegates are selected, how the rules are established, and potentially how many votes each state or delegate will receive.
So the bottom line is that this will be a federal convention, not a “Convention of States” as the name implies.
So why does Fox News align this movement with States’ Rights? Part of the answer lies in the quote from the Texas Public Policy Forum president:
“The American people are mad and they’re looking for a way to say, ‘No more,’”
“…the U.S. Constitution is not a self-enforcing document.”
Proponents of an Article V convention are attempting to tap into this anger; specifically in those who, without researching the actual mechanics of a convention, will latch onto the rallying cry of “States’ rights!” Unfortunately, as I have described above, states may have nothing to do with the actual proposing of amendments which will happen on the floor of the convention by the delegates Congress authorizes.
Even Fox News in their shoddy reporting gets it wrong when they say, “Article V of the Constitution allows a minimum of two-thirds of the states to call for a convention to propose amendments, in turn going around Congress. ” Article V does not “allow.. the states to call for a convention.” Only Congress can do that as it is plainly written in Article V.
While there are many other dangers inherent in an Article V conventions, I will only briefly mention a couple here for you to consider and then move on to more important matters.
- An amendment to the Constitution can change just one comma or everything except one comma. Despite the claims to the contrary, there is no such thing as a limited Article V Convention.
- Four simple words can change everything “States’ sovereignty is abolished.” Although lawyers today would add 40, 400, or even 4,000 words to obfuscate this simple concept.
The sad part of this entire discussion to this point is that it is all smoke and mirrors. Proponents of an Article V Convention misdiagnose the problem and then proceed to prescribe the wrong solution hoping to keep your attention away from the root causes of our failing republic.
The Wrong Solution to the Wrong Problem
“…what we have is a people problem, not a document problem.”
Anyone with an ounce of God-given common-sense will tell you that the first step to solving a problem is correctly identifying the problem.
So what do the advocates of an Article V Convention tell us is the problem? An out-of-control federal government.
Let’s break this down…
Our republican form of government is made up of the people we elect and their appointees. To be precise, it is not the government that is out-of-control; it is our public servants who we allow to run the government that are exhibiting “out-of-control” behavior–individually and en masse. Our minimum expectation of these officials (elected and otherwise) should be to “support and defend the Constitution of the United States against all enemies foreign and domestic.” The problem is that they are not.
They do not support and defend the Constitution because “we the people” do not hold them accountable when they fail to do so. Unfortunately for the lazy, complacent, and apathetic Americans, the U.S. Constitution is not a self-enforcing document.
In “The American Crisis, No. 4” written in 1777, Thomas Paine says:
“Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.“
Advocates of an Article V Convention are trying to convince us that there is something wrong with the Constitution. That if we can just make a few tweaks, everything will be back on track. But, what we have is a people problem, not a document problem.
So if the Constitution is not the problem, why is amending it the solution?
So after they have misdiagnosed the problem as an out-of-control federal government (or public servants in effect), proponents of an Article V convention propose that in order to fix this “problem” we should change the Constitution.
But, if our current public servants won’t “support and defend” the Constitution today, why should we expect that they will suddenly do so after it is amended?
Will we add an amendment that says “We really mean it this time!”?
Should we then amend the 10 commandments because people won’t obey them?
The real problem is not an out-of-control government, nor even our public servants. After all, we already have term limits on our elected officials…they are called elections!
The real problem is a complacent public who would rather choose the simple solution of allowing professional, well-organized, and well-funded organizations to promote an Article V Convention, because it gives us the feeling that something is being done rather than do the hard work of staying informed and holding our public servants accountable for their individual actions.
The root problem with the Republic is that “We the People” are not holding our public servants accountable. Until we hold them accountable, no change to the Constitution will matter. Once we hold them accountable, no change to the Constitution will be necessary.