Facts Addressing A: “Resolution Calling for a Convention to Amend the Constitution of the United States”

Scott N. Bradley


As you are aware, there is a highly organized, cleverly disguised, and powerfully promoted effort to call some sort of convention empowered “to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”  Because constitutions, by definition, establish the power and jurisdiction of a government, seeking to change the Constitution with the intention of “limit[ing] the power and jurisdiction of the federal government” as is proposed, this is tantamount to opening the entire constitution to revision or replacement.

Those who seek this power undertake this effort because, they say, “THEY are violating the Constitution, therefore WE must change it.”  While this violates all logic, reason, and intelligence, this mantra has gained traction in many state legislatures, and has the advocacy of many prominent personalities.  I fear the nation is fast approaching a time when a convention, by whatever name they denominate it, will be called.

One of the many “spins” promoted regarding this effort is denominated a “convention of states.”

This proposed effort to re-write the Constitution purports to invoke Article V of the United States Constitution as authority to do this, but yet claims the effort will not be a constitution convention, perhaps to mitigate the perceived dangers and concerns many rightfully associate with a constitution convention.  Interestingly, Black’s Law Dictionary (printed edition) defines a constitution convention thus:

“A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, or amending its constitution.  Art. V of U.S. Const. provides that a Constitutional Convention may be called on application of the Legislatures of two-thirds of the states.”

Therefore, by definition, this nationwide effort is to call a “Constitution convention.”

Generally, legislative resolutions calling for a convention of states read as follows:

“ . . .  the Legislature of the state of _________________  hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”

Throughout the United States, advocates of the Resolution Calling for a Convention to Amend the Constitution of the United States make many false claims to promote this most dangerous resolution.  Arguably, this is the most dangerous resolution of its type which has been brought forth to date.  It TRULY opens the entire United States Constitution to revision. If the convention proposed in this resolution is convened, there are no limits or bounds to the power granted to modify the Constitution.  As noted above, because constitutions by definition establish the power and jurisdiction of a government, seeking to change the Constitution with the intention of “ limit[ing] the power and jurisdiction of the federal government” (as this resolution purports to do) is tantamount to opening the entire constitution to revision or replacement.

The United States Constitution already does a magnificent job of defining and restraining the power of the national government.  Those in power are egregiously and constantly violating their oath of office, and we, the people, allow and encourage it by being complicit and complacent.  Putting the Constitution at risk by opening it to the likes of those currently violating it is the height and epitome of lunacy.

Unfortunately, many delusional assertions are used to promote the resolution and to assuage the fears of danger which thinking legislators perceive.

Following is a BRIEF review of the falsehoods used to deceive legislators into passing the resolution:

Assertion 1. Article V of the Constitution allows the STATES to CALL a “convention of the states” to modify the Constitution.

Fact: The words  “convention of the states” are not found in the United States Constitution.  This term is a fabrication of the current convention promoters to facilitate their deception that the states have all power in the matter.

Article V of the Constitution allows the states to APPLY for a convention, NOT CALL a convention to modify the Constitution.  This distinction is critically important, as will be explained herein afterwards. Following are the specific pertinent words as embodied in Article V of the Constitution:

“The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . .” 1

It is UNEQUIVOCALLY STATED within the body of the Constitution that the states APPLY, the congress CALLS such a convention.

Assertion 2.  The U.S. Congress has no power in the matter once the states “call” the convention.

Fact: As noted above, congress is empowered within Article V of the Constitution to call the convention once the required number of states have applied.  Article I, Section 8, clause 18 of the United States Constitution delegates to the congress the power to do all that is necessary to carry out the powers delegated to it within the Constitution:

“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.” 2

Per Article V, congress has power to call the convention, and per Article I, Section 8, clause 18 congress has the power to carry out ALL that is associated with the fulfillment of that power.

Congress will not acquiesce that power to the states.  In July 2012, April 2014, and March 2016 the official non-partisan “think tank” of congress, the Congressional Research Service (CRS), published detailed reviews of the duty of the congress in the matter of constitution conventions, and concluded that congress has this authority and will not acquiesce it.

Assertion 3. The states may collude among themselves by prior agreement, compact, or arrangement to call a convention for their purposes according to their prior discussions, and thereafter call a convention by the Article V application process that supercedes and supplants the congressional prerogative and power in the matter.

Fact: The United States Constitution precludes such a usurpation by the states, unless the congress gives prior consent:

“ No State shall, without the Consent of Congress . . .  enter into any Agreement or Compact with another State . . .”  3

Congress has not given such prior agreement for such a purpose, and will not.  If such actions have been taken by the individuals and states fostering the so-called “convention of the states,” they are in violation of the Constitution and should be recognized as such.

Assertion 4. Once the states have called the convention, they will be completely in charge of the “rules of engagement” associated with the convention; including defining and calling delegates, the number of delegates, one-state-one-vote voting allotment, control of the matters and issues upon which delegates may vote, etc.

Fact: The aforementioned 2012, 2014, and 2016 CRS studies review this matter in detail.  The location of the convention, the dates of the convention, the delegate-count allotted to the states, the state-by-state vote allocation arrangement (additional details found below), the protection of the delegates from punitive action based upon their activities/votes in the convention (additional details found below), etc. were all considered.  Congress will exercise their constitutionally-mandated prerogative in these matters. These matters are not left in the hands of the states according to the view held within the congress.

Assertion 5. The convention promoters assure us that the voting on proposed changes to the Constitution will be done on a One-State-One-Vote basis.

Fact: California has a population of over 38,000,000, Wyoming less than 600,000.  One-State-One-Vote would give each citizen of Wyoming 63 time more influence than each citizen of California.  California’s Governor, Senators, Congressmen, Legislature, and citizens will never allow this. They will surely demand “equal representation” in the convention.  The aforementioned 2012, 2014, and 2016 CRS studies address this matter, and suggest that a system analogous to the Electoral College be implemented for voting in the convention.  Such a system would give California 55 votes and Wyoming 3. The CRS studies suggest that this approach still unfairly biases the outcome in favor of the small states, and suggests that the appropriate solution may be one that purely reflects the populations of the states.  The influence of the smaller states would diminish to near zero under such an arrangement, but in today’s democracy-prone environment, such an arrangement is not outside the realm of possibility.

Assertion 6.  Advocates of the convention assure us that the delegates to the convention will be kept under the strict control of their states.  They propose to do this through Voting Instructions, Delegate Recall by their State, Criminal Penalties Pre-Defined by the States for Violations (including: Misdemeanor Charges, Felony Charges, Fines, Prison Terms).

Fact: Interestingly, the aforementioned 2012, 2014, and 2016 CRS reports address this matter, and suggest that when the congress calls the convention, they need to protect the delegates from such actions by their home states.  It is recommended that when the congress calls the convention that they include in the call some wording similar to that found in U.S. Constitution Article I, Section 6, clause 1 that protects the US Congressional Representatives from legal harassment during the fulfillment of their duty:

“They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”  4

The belief that all convention delegates may be controlled and manipulated is contradictory to the concept that a convention is an autonomous body.  Conventions become autonomous by definition. In addition, there is the strong likelihood that the pardon process of the offices of the president or the governors could or would be exercised as needed.

“Recall Plans” by states (plans to remove convention delegates from the convention and call them home if they do not perfectly follow the wishes of their home states) if a delegate does not “toe the line” with the state’s wishes are immeasurably foolish!  Think for moment: the state’s application for a convention counts toward the Article V requirement that two thirds apply before congress calls the convention, and then when the convention is called and underway, the state recalls and withdraws their representation.  How foolish! The state is then left without a voice at the convention, and is completely left out of the debate.

Assertion 7.  Promoters of the proposed convention resolution foster the falsehood that amendments could not be proposed during the convention that could result in modification of the amendment ratification process.  They assert that because the Supreme Court would not allow the ratification window for the so-called Equal Rights Amendment to be extended from seven years to ten years that it would be impossible to ever change the current amendment ratification requirement of 3/4’s of the states.

Fact: How disingenuous and absurd!  Their example about the ERA is completely unrelated to what might occur in a convention called for the purpose of modifying the Constitution.  If ANY part of the Constitution may be modified during a convention by amendment, ALL parts of the Constitution would be vulnerable to attempts to modification.

Interestingly, the Convention of 1787 was chartered by the Congress to “revise” the then-existing constitution, the “Articles of Confederation.”  Revise means “amend.” Even with the seemingly limited charge to simply amend the constitution, the 1787 Convention set the existing constitution aside, wrote an entirely new constitution, and wrote a ratification process into the new constitution that greatly enhanced and facilitated the probability that the new constitution would be ratified.  We have an undeniable precedent from the only truly similar convention that has been held in this nation, but the convention promoters refuse to admit its possibility.

Assertion 8.  Term Limits are proposed as a justification for calling a convention to change the Constitution.  We are told that this is necessary because so many representatives are constantly being re-elected.

Fact:  Do we need a “Term Limits” Amendment?  NO! We already have term limits. It is called the ballot box.  The truth of the matter is that in our November elections we could remove ALL of our U.S. Congressmen, and 1/3 of our Senators.  Two years later we could do the same thing again and also cleanse the Executive department. The problem is that the electorate is so caught up in the “incumbent” mentality that for many years every incumbent has been virtually assured re-election.  It is a sad truism that we get the type of government we deserve.

The problem really is an apathetic and ignorant electorate that has embraced an “entitlement” mentality.  It would be dangerous to think that if we term-limited the office-holder we would assure the nation of a better, more soundly-founded representative.  In today’s political environment there is always another socialist waiting in the wings to step into any vacant office. Look at Amendment 22, which term limits the president.  This amendment has not assured the nation of higher quality presidents. And a six year “lame duck” in the senate during his final term could wreak untold damage to the nation! And think how, in today’s perverse agenda-driven-party-system, how the Supreme Court would become an even greater political plumb with regular Supreme Court Justice selections driven by the false philosophy that the Constitution is what the Supremes say it is!

Additionally, why would we want to remove representatives that are operating within their oath of office?  The key is an electorate that understands correct principles and is willing to hold our representatives to their oath of office to abide within the limits and constraints of the United States Constitution.

Interestingly, the American Founding Fathers knew of and considered term limits when they wrote the Constitution in 1787.  The first United States Constitution, the Articles of Confederation, had term limits. The experience the Founding Fathers had with term limits under that document had been unsatisfactory.  They knew about term limits and purposefully left them out of the new United States Constitution they wrote in 1787. The people should not be denied the privilege of choosing their representatives.

Assertion 9.  Those who seek a convention through this resolution purport to seek to limit the power and jurisdiction of the federal government through the amendments they hope to proposed in their convention.

Fact: Founding Father Noah Webster defined constitution thus:

“The established form of government in a state, kingdom or country; a system of fundamental rules, principles and ordinances for the government of a state or nation. In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.”

The United States Constitution conformed exactly to this definition.  The specific powers of each of the departments of government were specifically spelled out within the Constitution, and “in order to prevent misconstruction or abuse of its powers,” as explained in its Preamble, the Bill of Rights added “further declaratory and restrictive clauses.”  The national government has no other powers than those so spelled out within the Constitution! As noted in Webster’s definition, “the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power.”  Nobody in government is legally allowed to violate the limits and bounds established by the Constitution, but today it is constantly violated on every whim.  A convention to re-write the Constitution will not solve the base-line reasons the nation is struggling, and, based upon the proposed amendments which are currently in the public eye, many of the proposed amendments will make constitutional practices that are currently unconstitutional, such as spending money for whatever whim is offered, as long as there is money (as opposed to spending money ONLY for purposes delegated within the current Constitution), and for allowing the executive to legislate and regulate as long as the costs are below the threshold established in the new amendment (as opposed to the president and his branch being entirely prohibited from creating legislation by our current Constitution).

Assertion 10.  Numerous concerns are enumerated by promoters of the convention which purportedly justify the necessity of changing the Constitution.  Matters such as the ballooning federal deficit, onerous laws and regulations created by the Executive Branch, federal destruction of protections vouchsafed in the Bill of Rights, etc. are bandied about as requiring the Constitution to be changed.

Fact:  In EVERY instance noted by the convention promoters, the problem is that the Constitution is being violated.  The cry of the convention promoters is: “They are violating the Constitution, so we must change it!” This position violates all logic, reason, and intelligence!  The problem is not in the Constitution! The problem is that our representatives and the people have stopped abiding by it. The solution is not to change it, but to return to it.  Changing it will not solve the problems, and will likely exacerbate them because the new “solutions” will be manipulated into the perverse view of what current politicians desire government should be.  Given adequate space and time, numerous examples of these dangers could be elucidated, citing specific examples of dangerous changes promoted by such so-called “luminaries” as Mark Levin.

The Constitution of 1787 created a national government whose powers are few and defined.  The powers delegated to the national government are enumerated, divided and subdivided, checked, and balanced, and are prohibited from expansion by legislation, executive action, judicial pronouncement, practice, or wish.  The Ninth Amendment protects all God-given rights of the people, whether listed or not, and the Tenth Amendment equivocally states that if a power was not delegated to the national government in the plain English words of the Constitution, the national government DOES NOT Have Those POWERS!

Assertion 11.  Three Fourths of the states would not ratify a bad amendment.

Fact: The Constitution Convention of 1787 was called by the congress to “revise” (amend) the then-existing constitution: The Articles of Confederation.  In 1787 the convention set aside the existing Constitution and wrote a new one, changing the ratification process that was contained in the Articles of Confederation.  

And talk about how states would never ratify “Bad” amendments!  Does anyone remember:

The 14th Amendment: Most litigated Amendment

The 16th Amendment:  Income Tax

The 17th Amendment:  Direct Election of Senators

The 18th Amendment:  Prohibition

Much to the detriment of the entire nation, all of these horribly flawed amendments were ratified by three fourths of the states.  Somehow principle was set aside (in an era wherein constitutional principles were much more widely understood than they are today), and we have been saddled with these egregious mistakes ever since (except the 18th Amendment, which was amended out of existence in the way we have thus far amended the Constitution, with the ratification of the 21st Amendment).

I cannot help but wonder:  Could such a ratification disaster happen today???  Could the convention process either change the ratification threshold, or dupe the states and people?

Assertion 12.  Delegates to the proposed convention will be highly qualified representatives of the people who are soundly founded in the science of government, and will bring forth solutions to that which vexes the nation today.

Fact: Tragically, the only delegates that could possibly serve in such a modern convention would be called from our current crop of political figures, who are guilty of creating the constitutional confusion that currently exists in the nation.  In his day James Madison warned against holding another constitution convention, stating that such a convention “would probably consist of the most heterogenous characters,” certainly from both parties. We may be absolutely assured that NONE of the American Founding Fathers will be delegates to this proposed convention.  Where in the entire world today may we find even one or two statesmen of the character and understanding exhibited by George Washington, Benjamin Franklin, George Mason, James Madison, James Wilson, and the others who, under the inspiration of God, framed our marvelous Charter of Liberty: The United States Constitution? We will search the world in vain for such individuals.  Who, today, will sit in the seats occupied by those who brought forth the Constitution of 1787? NONE I would trust!

Conclusion

Rather than try to change what is not flawed, the promoters should seek to make popular the sound and good principles defined within our magnificent Constitution, and overthrow the false philosophies which are currently embraced by the people and leaders alike!

In his magnificent Farewell Address Washington wisely counseled:

“If . . . the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.” 5

He said if it is WRONG, amend it, not if it is being violated.  There is nothing wrong with the Constitution.  We have simply stopped applying it. Willful violation of the Constitution does not indicate it is wrong, nor is it in any way a justification for changing it.

It would seem to me that a more appropriate approach to restoring our sound foundation would be to apply Article VI of the Constitution: Insisting that ALL who hold office uphold their sacred oath and keep their actions within the bounds established within the Constitution.  As Jefferson said: we must “bind them down from mischief by the chains of the Constitution.” 6

Delusional logic and wishful thinking do not justify tampering with our magnificent Constitution, nor do they assure that further injustice will not be wrought upon this long-suffering nation as a result of the proposed convention.

Numerous other egregious false assertions could be noted and refuted, but surely the twelve above-noted issues must suffice for the honest inquirer, and the danger of this proposed resolution must be fully apparent.  ANY effort for a convention of states MUST be defeated!