Convention of the States:

Doomed Republican Power-Play

A Populist Force

A little-known provision of the US Constitution has become a hot topic for state legislation, especially from the Red States. 

Article V of the Constitution provides for two procedures for amending the Constitution.  The only route ever used is a two-thirds vote of both Houses of Congress followed by ratification of the proposed Amendment by at least two-thirds of the state legislatures. 

It is the never yet used method though that has recently come into the limelight.

Conservative radio talk-show host Mark Levin, the person who has somehow come to the forefront of this new political venture, has a recipe for saving the nation, called his “Liberty Amendments”.  At the centerpiece of his constitutional overhaul is the proposed method of enactment, a Convention of the States to amend the Constitution, largely without the participation of Congress, something always allowed under Article V, but a method never used throughout US history. 

There have been almost 400 times so far though that state legislatures, one by one, have asked Congress for an Article V Convention for one reason or another, all to no success.

As the oracle of the conservative radio-waves on this subject, Levin’s promotion has led to a series of “Application” resolutions, some passed by state legislatures, seeking the convening of a Convention of States on a single subject.  As of now, largely due to the 1984-1991 period of time, thirty-four Applications have been enacted seeking a balanced budget amendment Article V Convention, the requisite number needed to force Congress to convene the Article V convention if those Applications can be counted together. 

This key number of State Applications has led to much confusion on this subject, including erroneous reporting by renegade web sites insisting the Congress is now required to call a Convention of the States.

Yet, all of this supposed shaking at the very pillars of big government turns out to not necessarily mean a single thing at this point.  All of the State Applications passed so far are, at best, null and void and, only at the very worst, an invitation to try to rewrite the entire US Constitution.

That is because the entire Red effort is centered on a wholly mistaken assumption concerning the intended role of a Convention of States.  That is the good news rendering these Applications void in a rational world.

Beyond the partisanship and game-playing, the bad news is the pile of Applications could possibly, in a pinch, be interpreted by Congress to create a monster, a monster even the Applications directly seek to avoid.

What is a Constitutional Convention to Do?


As recounted by Professor James Rogers in his Harvard Journal of Law article on this subject, the 1787 Constitutional Convention in Philadelphia faced competing visions of the independent authority of the States to amend the new federal constitution.  The complicated double formula set out in Article V of the Constitution was the compromise made.

When the first draft of the amendment article was offered in Philadelphia, Delegate George Mason of Virginia firmly objected to limiting the amendment process to always require approval by Congress.  It was thought to be an instance of the fox guarding liberty’s henhouse.

Yet, many Philadelphia delegates opposed amendments to the new constitution that were authored strictly by the State legislatures, an objection made especially by small state delegates.

Rather than choosing between the two methods a dual method was struck upon that operates separately.  The original formula remained in place relying on a Congressional vote and the ratification by the States, but was joined by an alternate method where a constitutional convention may be required to be convened by the call of a supermajority of States. 

With this alternate course the sole role of Congress is calling the Convention of States once the requisite number of State Applications has been enacted: more on this later.

The Philadelphia compromise shifted from State legislators the initial deliberation and offering of constitutional amendments to lie instead with a specially-appointed deliberative body, a Convention of the States. 

So, Article V reads as follows in relevant part:

“... on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments … [which] 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 ...”  (Emphasis supplied)

So, the power of the constitutional convention to enact amendments is also greatly restrained by this formula, by the further necessity of wide approval of any proposed constitutional amendment coming out of the Convention of States.

But the authority of the Convention of States alone to formally propose and recommend amendments to the States, or even to recommend wholesale revision of the federal constitution, is clear from the words and intent of the authors of Article V.  A Convention of States cannot be a “runaway convention”, but rather a body intended to debate and propose on any subject basically for discussion by the States, but not to directly enact changes in the Constitution. 

In the words of Professor Rogers the Article V safeguard against a Brave New Constitution is obvious.  “If the States determine that the convention exceeded its scope, they can refuse to ratify the proposed amendments.” 

The solution struck in Philadelphia then was to open a route for the States to invoke constitutional amendments through a specially-created deliberative convention and to then leave the confirmation of the proposals to the States.  This compromise left the Congress all but out of the process when this alternate method is pursued by the States.  Important to this discussion, the compromise also placed a buffer on the sovereignty of the majority of the States to change the federal constitution at will.  It was the Convention of States that would do the formal “proposing” of constitutional amendments, an independent deliberative body.

The Rogers’ Harvard article tracked the same territory and conclusions as an earlier article by Professor Walter Dellinger appearing in the Yale Law Journal. 
Dellinger, The Recurring Question of the "Limited" Constitutional Convention, 88 YALE LJ. 1623 (1979)  

In short, Professor Dellinger concluded“… any new constitutional convention must have authority to study, debate, and submit to the states for ratification whatever amendments it considers appropriate.  Although such a convention might well decide to focus upon one issue, it cannot be required to do so by Congress of by the state legislatures.”

The only federal court case that delved into the general subject of Article V held that the interpretation of this article of the Constitution is a “political question”, ending with the US Supreme Court allowing Congress alone to decide whether a 13-year old Application from Kansas for a convention of states was too stale to be counted.  Coleman v. Miller, 307 U.S. 433 (1939)

So, there will be no more court cases when it comes to interpreting Article V short of a constitutional crisis over the sparse direction provided by the article, for instance what is to be the apportionment of delegates at the Convention of States.

There is not a jot of legal authority that concludes the State legislatures can control the subject content or the rules of an Article V Convention.

When a State Application is not an Application

If one were to recommend that a convention of present day American politicians be appointed to rewrite the federal constitution the idea would not play well at all among right-wing circles, quite the opposite.  It is the hated progressives who want to toss out the Constitution in favor of a modern set of values ordaining US big government as the basic law of the land.  Conservatives, of course, love the present Constitution, in theory anyway.

So, the popularity meter for this right-wing political effort requires the Convention of States to only be able to consider conservative proposals, particularly those made by Mark Levin of course.  So, that is the pitch being made.

Always claiming mystical insight into the thoughts of the “founding fathers”, Levin is seemingly unaware of the basic aims and balance of Article V or of the unique compromise struck in Philadelphia.  Even the actual words of Article V have to be evaded by Levin in presenting his necessary charade that a Convention of States can be absolutely directed in its deliberations from the outset by the majority of state legislatures.

This sleight of hand is accomplished supposedly by the State Applications themselves.  For instance, three recent Applications enacted, from Georgia, Florida and Alaska, use the identical language limiting the Convention of States to considering a “balanced budget amendment”.  The Applications also seem to mandate the composition of the convention by appointing a single delegate from each state, the governor of each state.  This is now the Republican Article V campaign’s formula.

This kind of effort is nothing new.

Dating back to the first Article V Application ever made, by Virginia in 1788, by far most have attempted to limit the deliberations of the Convention of States to a single subject.  Only five States, beginning with Indiana in 1861, have enacted Applications for a convention on any matter with none of those Applications yet rescinded.

 There are State Applications seeking to criminalize desecrating the flag, to enact the human life amendment, to join a world federation and to change Article V among many more subjects.

There are presently thirty-four States that have enacted Applications to Congress for an Article V convention to enact a balanced budget amendment, beginning with Virginia in 1973.  However, twelve of those States have since rescinded their Applications.  Apparently, adding those rescinded Applications to the total has led to the erroneous reporting that Congress must now call an Article V Convention.

The balanced budget Applications that preceded Georgia, Florida and Alaska do not share enough language anyway to be considered identical in the request being made.  Even the Levin web site admits only those three States have passed Article V Applications that can be added together to begin to total the requisite thirty-four.  Only three other States, Arizona, Missouri and South Carolina, have the Levin model Application pending for consideration. 

So what is Congress to do in such a confused situation with all of these State Applications?  It is Congress that is supposed to be basically left out of this process by the way. 

Congress could, for instance, decide that even fifty State Applications for a limited convention, all made in identical language, are null and void, since no such convention is allowed for under Article V. 

Conversely, the Congress could anytime call for an Article V Convention that would address a variety of subjects or, broadly, any subject.  Supposedly the US Supreme Court would not interfere.

So, the confusing array of calls for a Convention of the States empowers Congress to slice and dice the State Applications anyway it chooses to.  The crazed posture does seem to invite Congress in a vacuum to define the rules of the Article V Convention that just about every State seems to want at some time in some manner.

Is This for Liberty or for Partisan Advantage?


No George Washington

So, why deepen the quagmire with more State Applications that ask for something Article V does not allow for?

Is it to expand liberty at a populist convention breaking the chains Congress places on the people, especially conservatives?  That, of course, is the Levin mantra.

Or is this effort only a cynical method to enliven the conservative herd to buy those books that keep AM radio promotion artists in business?  This is the most obvious goal.

But that does not mean there is not an arcane numerical advantage that is also front-and-center with this Red campaign.  Most elitists can only think of new legislation in narrowly partisan ways.

The political happenstance that is to empower red-blooded Republicans to take over the nation by changing the Constitution is the fact the small states tend to have Republican legislatures and large states tend to have Democratic legislatures.  There are presently thirty-five Republican majority state legislatures, though six have to split power with Democrats.  There are presently twenty-nine Republican governors.

So, it is decreed, at least by three States, there shall be only one delegate for each State at the Convention of States, its Governor, the principle of one-state-one-vote. 

Why is this Red tide so convinced that an Article V Convention will be one-state-one-vote instead of being based on one-person-one-vote?

The only thing the tide can say is that the Philadelphia Convention adopted a one-state-one-vote rule.

Yet, the same Philadelphia Convention passed for ratification by the States a federal constitution that merged a Senate based on statehood and a House of Representatives based on population.  The document creates an Electoral College for Presidential elections that has a voting apportionment based on the numbers of congressional seats each State presently holds.

The US Supreme Court has also weighed in on this issue in a case not involving Article V.  The Chief Justice held that “Legislators represent people, not trees or acres.  Legislators are elected by voters, not farms or cities or economic interests."  Reynolds v. Sims, 377 US 533 (1964) 

Changing this principle of one-man-one-vote has itself become a subject for twenty-eight Article V State Applications, but in a dizzying variety of methods employed.

It seems unimaginable that a Convention of States would have a State with 50,000,000 residents given the same voting authority as a State with 300,000 residents.  Only the truly blind can see such a convention happening.

So, even in a parallel world where a Convention of States is called to order, the statist forces would be quite certain in the present American political model to firmly rule, adding things like ponzi-scheme entitlements and Keynesian craziness to the most fundamental law of the nation, a Constitution that has proven quite difficult to change.

This kind of power-play extreme backfire is quite endemic to the US auction for political influence as flamed by the artificial divide between Republicans and Democrats.  An unintended, disastrous consequence is a common but seldom appreciated hazard in a Red and Blue world.

In Levin’s Radio Land of Oz his “liberty amendments” cover bromide right-wing views, ones very unlikely to ever truly improve the nation’s liberty.  The halfway, backfiring proposals deserve no space here.  Any freedom fighter worth their salt could prove in a debate that Levin’s revolution is only recycled statism, including this freedom fighter.

How Demanding an Inch Could Yield a Mile in Every Direction

With both Houses of Congress needing to call for a Convention of States there is no single body responsible to get things right, including the US Supreme Court under its “political question” doctrine.  The Article V alternative method of amendment can be stonewalled and certainly will be as needed if the issue ever becomes serious.

That is possibly until there comes a time that the Republicans and the Democrats in Congress truly come together in a common crusade.  That, of course, will only occur in the wake of a national economic implosion of the sort so often predicted for so long.  Only then will the Republicrat Party of the United States openly show itself as the single entity it has been for over thirty years.

Amid such desperate straits, Congress may well decide that the American people, it turns out, have spoken through their state legislatures on the need for fundamental change in the Constitution, a constitution that is no longer working anymore.  So, a Convention of States could be called by Congress using the fodder of Applications already put before them.  Congress, in its paternal role, will set all of the rules of the Convention of States since the State Applications and the present Constitution have arguably left that power to Congress. 

But the careful constitution drafters from a quarter-millennium ago would likely still trump such a fascist monster, by leaving Congress’ creature under Article V to be ratified separately by at least forty States. 

The Washington political elite, while facing a nation in near chaos, will never muster unity across the country over such a hail-Mary pass to save their power, whether with or without Mark Levin, artist of the popular among his fantasizing sect of cranks and oldsters.

So, the words of the Constitution remain quite safe contrary to some earlier reporting.  The great danger remains from those now misapplying the Constitution.

As the State Applications arrive at Congress’ door it is only a matter for reflection on the farce that is our present times as authored by our embattled political elite.  Editor