Skip to comments.Constitutional Convention vs. a Convention of States
Posted on 10/30/2013 10:38:13 AM PDT by Jacquerie
Any teacher, lawyer, or politician will tell you that word choice matters. The words we use (and how we use them) can mean the difference between successful communication and horrible misunderstanding.
Over the last few months, many folks have asked, What is the difference between a constitutional convention and a Convention of States? Those who oppose the use of Article V like to use these terms interchangeably. They say that a con-con is dangerous and could result in the destruction of the American system of government. Any sane person, they say, wouldnt dream of pursuing a con-con. Well, we agree. A constitutional convention would be dangerous and could very well result in disaster.
(Excerpt) Read more at conventionofstates.com ...
We cannot trust in Washignton to reform itself...
If we cannot trust the states convention for proposing amendments then the Republic is already lost and we should let the states convention to propose amendments finish nailing the coffin of socialism around us all otherwise we shall languish even longer under tyranny...
Better to lose 2-3 henerations to tyranny than to lose all of history to tyranny under a slow languishing death...
The left likes to use semantics to hide what they are. Why are YOU using semantics to hide what you propose?
If you support it, do so proudly.
In my opinion, playing the semantics game to downplay the dangers of what you advocate is a tactic that drastically weakens your credibility.
Article 5 is very clear that Congress shall call a convention. Congress shall decide the mode of ratification.
How is a Constitutional Convention called by Congress and verified by methods determined by Congress a “Convention of States” independent of federal control?
How is that, exactly?
Or, as seems to be the wont here, how is that, euphamistically?
Look at my posting history. Your accusations aren’t worth a response.
Question for the day: Obamacare Democrats or TEA Party Republicans: Who yuh gunna trust?
How about a revolution?
YOU posted an article suggesting that it would be better PR to promote a Con-Con in euphemistic terminology.
THAT is your posting history.
I suggested that it’s the left that whines that their ideas only lack for support because that haven’t been sold the right way.
Why don’t you propose an Art V con-con on the basis of what Art V says.
Show me the phrase, “Convention of States” in Art. V. What I can show you in the plain language of the Art. is that Congress has the authority both to call such a Convention and to choose its mode of ratification, i.e. a federal Con-Con.
We revolted in 1775 because the alternative was tyranny.
The Framers gave us peaceful means to reassert republican freedoms. It would be silly not to use Article V.
Go enjoy yourself.
While I will support a con-con, basically the only problem with the Constitution is that it is not being taught anymore, if it ever was taught. And the consequence of widespread ignorance of the federal government’s constitutionally limited powers is, unsurprisingly, unconstitutionally big federal government.
What we should should be seeing instead of talk of con-con is a bunch of impeachments going on for many government leaders who are blatantly ignoring their oaths to protect and defend the Constitution which nobody reads. The problem is that most of the lawmakers who have the power to impeach corrupt government “leaders” need to be impeached themselves.
What a mess! :^(
Article V ping!
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.
I don't want to rain on anyone's parade, but even when the appropriate number of States compels congress to call an Article 5 Convention, it is still congress which calls, and therefore presumably controls, the convention. That being the case, how could the States be certain of preventing the convention from running just as 'out of control' as one called by congress without an Application from the States?
Congress has zero authority to control the convention. There is no statute nor clause in the constitution that grants congress the authority. It would defeat the entire purpose of a state amendment convention.
Presumably Congress would have no power to do otherwise than to set the ratification process in train either by designating a ratification by state legislatures or by state conventions.
I concede that the lack of procedural rules of the Constitution suggests that the field might be open for Congress to exercise power. Indeed, in the past Congress has fought and can be expected to fight again to keep control of the convention process and the ratification process. When Congress historically does not like the prospect of a convention it finds ways to deny that two thirds of the states had timely called for one.
One can have a lot of fun playing hypothetical games. For example, what happens if Congress declines to call a convention and the states meet anyway? What happens of the states meet in convention to propose amendments, and Congress fails to designate the method of ratification? Suppose the states proceed to ratify anyway? One could go on and on.
For example, suppose one state stipulates that its delegates shall vote as a unit but the convention declares that all delegates can vote individually? What happens if Congress makes a similar rule? The permutations and combinations are almost endless. But they do not necessarily suggest a runaway convention or a convention under the control of Congress alone.
The real protection against a "runaway" convention ultimately is in the ratification process which requires three quarters of the states. Fortunately, Republicans have a strong hand in the state legislatures.
One must weigh the danger of continuing impotently on a headlong course controlled by Marxists in Washington and acquiesced in by Rinos toward disaster, or accepting the very limited risk of a runaway convention. If the left has power enough to control such a convention through the states we are lost anyway. But there is no evidence to suggest they do.
True enough. We have the Constitution we have as a result of a "runaway" convention, at least to hear George Mason tell it, and I have a sneaky sympathy for his point of view even though I'm glad it turned out the way it did.
To this one: What happens of the states meet in convention to propose amendments, and Congress fails to designate the method of ratification?
We can look at past ratification methods proposed by Congress for the 27 amendments that have been made so far.
Ratifying conventions have only been used on one occasion, that being for the ratification of the Constitution's 21st Amendment in the year 1933. All other proposed constitutional amendments have been offered to the state legislatures for ratification.
One can presume that, based on past intent by Congress, that State legislatures is the preferred method by Congress for ratifying amendments to the Constitution.
Previous conventions? What are you talking about? There has only ever been ONE constitutional convention, and it was not called under our current constitution.
There is no precedence for congressional control
True enough regarding an actual constitutional convention, but you were speaking of Article 5 conventions. There are no precedents whatsoever for Article 5 conventions, because congress has never called an Article 5 convention.
However, regarding congress' authority to run/control such a convention, one can turn to the last paragraph of Article 1, Section 8 of 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.
Article 5 gives congress the power (and responsibility), under certain conditions, to call a convention for purposes of amending the constitution.
I'm pretty sure Article 1, Section 8, empowers them to set the rules for carrying such a convention to execution.
To your observation that despite your sneaky sympathy you're glad for the way the constitutional convention turned out, one might say the same of the war between the states.
Article 1, Section 8 is why I presume they have such control bestowed upon them.
The ONLY thing Congress does is,on the request of states, to “Call” the convention. To order it to happen.
That is it. It has nothing to do with the running of it, the voting in it, or anything else. After the “call” (basically an invitation),the whole thing comes from the states.
And it is not a complete rewrite of the constitution. The states propose amendments. There are safeguards in place to have a level of support to first propose, then to ratify the convention.
All this does is remove the total chains of tyranny we are being strangled by and rebalance the power back to the states.
Why do YOU support continued federal tyranny, and oppose a method our founding fathers thought was important enough to use, for such a time as this, to save our republic by CONSTITUTIONAL means?
If it is so dangerous, why did our founding fathers put it in the constitution?
Read the history of Article V and why this portion was added before you make unfounded allegations.
More on Article V
We are approaching a crossroads.
One path leads to the escalating power of an irresponsible centralized government, ultimately resulting in the financial ruin of generations of Americans. The other path leads to the restoration of liberty and an American renaissance.
The correct path can be found within Article V of the United States Constitution.
Many people dont know that there are two methods to propose amendments to the Constitution, both found under Article V.
1.Congress can amend the Constitution at any time if 2/3 of both houses of Congress agree.
2.A convention of states can be called if 2/3 of states submit applications. These applications must all deal with the same issue (i.e., limiting the power and jurisdiction of the federal government).
The Founders knew the federal government might one day become drunk with the abuses of power. The most important check to this power is Article V. Article V gives states the power to call a convention for the purpose of proposing amendments to the Constitution.
By calling a convention of the states, we can stop the federal spending and debt spree, the power grabs of the federal courts, and other misuses of federal power. The current situation is precisely what the Founders feared, and they gave us a solution we have a duty to use.
After the states propose, debate, and vote upon the proposed amendments, they will be sent to the 50 state legislatures for ratification. Three-quarters of the states must agree for any of the proposed amendments to be ratified.
Congress has no authority to stop such a process. The Founders made sure of that.
We are appraoching a crossroads.
Which will we choose?
The most common objection to an Article V convention is called the “runaway convention” objection.
It envisions a doomsday scenario in which delegates disregard the original issue, rewrite the Constitution, and change the entire American system of government. While this initial response is understandable, it is based on fear and misinformation.
Here are the facts:
1. There is a clear, strong single-subject precedent that would almost certainly be declared binding in the event of a court challenge. There have been over 400 applications from state legislatures for an Article V convention in the history of the Republic. No such convention has ever been called because there has never been an application from two-thirds of the states for a single subject. In addition to this, there is a huge amount of historical precedent that limits interstate conventions to a particular subject. (See Dr. Robert Natelsons handbook here: http://www.alec.org/publications/article-v-handbook/).
2. Ratification of any proposed amendment requires the approval of 38 states. It only takes 13 states to vote no to defeat any proposed amendment, and the chances of 38 state legislatures approving a rogue amendment are effectively zero.
3. Improper changes to the process can be legally challenged by state legislators. The Supreme Court has held that Congress acted unconstitutionally when it changed the rules of the process in midstream. See, Idaho v. Freeman, 529 F.Supp. 1107 (D.C. Idaho 1981) (vacated on the ground of mootness.) CSGs Senior Fellow for Constitutional Studies, Michael Farris, was lead counsel for Washington state legislators in that litigationthe last major Article V case in U.S. history.
4. There is absolutely no historical precedent for a runaway convention. Many opponents of a convention of the states make the historically false allegation that our Constitution was adopted as the result of an illegal runaway convention. Such an argument was invented by the enemies of the Constitution and is unsupported by historical fact. (See Was the Constitution Illegally Adopted? by Michael Farris at http://www.hslda.org/courtreport/v21n4/V21N401.asp).
American citizens must evaluate the relative safety of two choices. We can allow Washington, D.C., to continue abusing the Constitution and the rights of the people with the vague hope that someday Washington will see the light and relinquish power. Or we call a convention of the states, trusting it will behave properly and one of the many lines of defense will stop any misuse of power.
We believe the choice is clear. A convention of states is the safest means by which we can preserve our liberty.
However, there is nothing to say the Supreme Court should decide this matter. Who would decide the matter? These are all open questions for which there is some guidance from history but it is an area of constitutional law where the wise would be wary of categorical assertions.
Article I Section 6 prevents a sitting Congressman from participating in the convention:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
I know that there have been some legal analysis documents posted that debates this point, but I submit that a Convention of the States for the purpose of proposing amendments is exactly a civil office under the authority of the United States, since its very creation is authorized by Article V of the Constitution.
As such, a sitting Congressman would have to resign his seat in Congress in order to participate in the convention, if his purpose is to disrupt the convention's objectives.
Jacquerie, I know that you strongly believe that an Art. V. Convention is the only way to save the nation, and that you’re passionate about that belief.
I’m equally as passionate that an Art. V will be a disaster.
If a convention is called, the left isn’t going to quake in their boots that we’re going to take back the government. No. They’re going to lick their lips that they FINALLY have a mechanism to cram down the 2nd Amendment.
They will break every rule and throw aside every protection you believe exists to do so.
The left plays to win, at all cost. They look at cheating to do so as a badge of honor, an indication of just how far they’re willing to go for their beliefs.
Our side? Our side pushes to promote our agenda only and just so far enough so as not to induce too terribly much media scorn. Can’t get blackballed from the beltway party list, don’t you know.
You speak of no precedent for Congress to intervene. That’s the point, there’s no precedent for any of it. When Congress makes up their own role (an invasive one) and all three branches of fedgov signs off, then what?
If we get an Art. V, they will bastardize the Constitution, trash the 2nd Amendment (and 9th and 10th, and more), and dare you to oppose this new “law of the land”.
Then what will you do? I’ve said this before: you won’t get liberty amendments, you’ll get liberal ones. And then. You’ll get a civil war.
I’m perfectly happy to have an Article 5 convention, as long as everyone involved understands the risks, especially the risk of congress exerting (or attempting to exert) its control over the proceedings and the outcomes (the proposed amendments).
In my original post, I was simply pointing out that the poster’s proposed solution to the anti-convention folks’ runaway-convention argument is not really a solution.
You make an excellent point regarding the 3/4 of states requirement for ratification of any/all amendments. Until the states are more than 75% Marxist, there is little danger of our constitution being officially gutted - although regrettably, huge portions of it have been effectively gutted already.
But look what just popped up. As some of us predicted before Obama was inaugurated, he is attempting to amend the Constitution without bothering with the states, without bothering with the House of Representatives, merely by co-opting two thirds of the Senate and himself, by treaty.
No member of congress would have to sit as a member of the convention in order for congress to exert (or attempt to exert) control over it.
There were half a dozen or so before the 1787 convention. Conventions of states/colonies were nothing new.
The threat to an Article V amendment convention would emerge from a congressional attempt to appease the states. Our first ten amendments were proposed by congress in order to head off an Article V convention lead by anti-federalists still smarting from their loss.
Your necessary and proper clause use is creative, but not applicable to controlling a convention.
Uh, congress SHALL call a convention when two thirds of the states apply.
There is no Article I Section 8 power to control a convention.
Nothing in the record of the constitutional convention or state ratifying conventions supports your premises.
The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.
The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I don't like some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see how the ruling class will try to dominate an Amendments Convention.
It looks lie for the time being we should stow away the fanciful “what if” discussions/arguments surrounding Article 5, and concentrate on saving the whole document.
See you on that thread.
The legislatures can initiate this on their own, if they choose.
Why would they do so? For one thing, to increase their own power. For another, to clear DC so that they (the farm club) can move in.
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.
Congress is required to call a convention whenever 2/3 of the stats say they should. It’s not optional, and it doesn’t look as if they can call a convention on their own whim.
They are to choose between two methods of ratification: ether 3/4 of the state legislatures (the usual method) or ratification conventions in the states, of which 3/4 must ratify.
It’s not as if Congress can either just call a Con Con randomly or refuse to call one when 2/3 of the states say so. Nor can they pick just any means of ratification. they must choose one of the two above, and that still requires 3/4 of the states to ratify, no matter which of the two they choose.
I would think that it "shall be valid to all Intents and Purposes, as Part of this Constitution."
I can't tell yet if you are also attempting to purposefully confuse the two terms.
“Nothing in the record of the constitutional convention or state ratifying conventions supports your premises. “
By the same token, there is nothing in the last 100 yrs of federal governance that supports your premise that Washington would keep their hands off a Con-Con.
There is much to support the supposition that all three branches of the fedgov would move heaven and earth to cram down any attempt by the States to intervene with their unification of powers.
You say that can’t happen because the Constitution says so. I’ve seen many things the Constitution constrains happen. When the convention is a runaway of federal involvement DESPITE the fact that can’t happen, then what?
When all three branches agree and the media backs them, then what do you do?
To me, it’s a non sequitur that we’re going to call a con-con to end federal blasphemy of the Constitution and by doing so, the fedgov is going to follow the rules and allow that to happen. The sentiment so certainly expressed by proponents of a con-con that the fedgov is going to follow the Constitution as we try to stop and reverse them from a long history of not doing so - that scares me. Be careful for what you wish.
I would presume that Congress, under its power to “call” such a convention, would determine the meeting place and the beginning date. Other than that, I don’t think it has power to set any of the rules.
Please explain how "convention for proposing amendments" is euphemistic, when that is the exact language used in Article V?
This would prevent a Member of congress who was in office when, say, DHS was created from being nominated to serves as DHS Secretary.
I’ve never promised an Article V convention would fix America’s problems. It is a lifeboat, and lifeboats are sorry replacements for the ship that was lost.
Little discussed at FR is that on October 16th, for all practical purposes, congress relinquished its last effective power, the power of the purse to Obama.
Obama can rule by fiat. The constitution’s limits are gone. But, Article V acknowledges the power of the sovereign people to reclaim what is theirs.
The senate is Obama’s bitch and the house is not far behind. There are patriots in both houses, but in the aggregate, the careful framework of our framers is gone.
We, the sovereign people have the constitutional means to reverse course. There is no guarantee; we may be too far gone.
Consider what outrage could possibly prod most Americans to call for an Article V convention. Obama rules by fiat, and that is not enough. Would he have to remain in office past 2016?
Having read just a little about the brutality of revolutions, including our own, I would rather risk an Article V convention long before we are (if not already) cornered without other than violent options.
Whatever comes out of a convention, three fourths of the states must ratify. There is no guarantee of the output of the convention nor what the states will do. It could be awful.
Still, history will not look kindly on a people who had the peaceful means to restore republican liberty and gaffed it off.
As for violence, forget it. We aren’t talking flintlock v. flintlock. Obama and his DHS monkeys have a monopoly on the big stuff and would appreciate the opportunity to thin the conservative herd.
But they didn't have a ratified Constitution already in place, with an Article V that limits the span of the convention to only proposing amendments, and not wholesale rewrites of the Articles of Confederation.
I never said a word about “convention for proposing amendments”. I said “convention of states” is euphemistic because such a convention is called by Congress and it’s method of ratification is determined by Congress.
The purpose of the phrasing “Convention of States” is to diminish the fact that such a convention can only occur with federal involvement.
How much involvement? Proponents of an Art V. say not much, because the Constitution says so. The fedgov will say that they are allowed to have their fingers in the whole pie. The Unification of Powers (as opposed to the former separation of powers) will agree, and so will the media.
That is their history and it’s precisely the reason why you want to call and Art V in the first place. To pretend that the fedgov won’t interfere because it’s an Art V is silly. Of course they’ll interfere. It’s the nature of power to protect itself.
They’ll not only interfere, they’ll see it as the perfect tool for their own purposes.
They will proceed on that basis.
To call a Art V convention a “Convention of States” and to pretend that their is no federal role (or that such a role can or will be limited, no matter what the Constitution says) is indeed, euphemistic.
Let me know when you figure out a way to force the federal and state governments to abide by the law and then we can talk about whether the law should be changed. Until then there is no point in rewriting rules for people who believe rules are only made to be broken.
At present we are in effect operating in the same way as if we had never had a written constitution, it is completely ignored so it matters little what the written document actually says.
Amending the constitution in this atmosphere is the equivalent of a parent who keeps saying, “You kids stop that right this minute or I will spank you” but never does.
I say, let them try. Let them show the people that they are at war with the states.
I, for one, am tired of people who talk themselves out of action because they presume a worst-case scenario as a foregone conclusion, and then give up entirely before even engaging the opposition.
Who knows what will ultimately happen? Who knows if the people will turn on Congress and support the states, or if Congress will suspend habeas corpus and crack down on the people?
Let's at least do something, and find out!
> “Article 5 is very clear that Congress shall call a convention.”
Congress must ‘call’ it if 2/3s of states apply for it. But call means only to alert the National Archives and other involved offices of the Federal Government to honor the applications of the states.
Many states, and you can find them on the internet easily, have applied in recent years for a Constitutional Amendment. The application process is well-defined as to the role of the federal government which is an involvement of certain offices to support and facilitate the states, not to interject any policy or politics or judgements.
Two-thirds of states (34 states of the 50) are necessary for the federal government to ‘act’ on an Article V process. By ‘act’ is meant certain offices are put at disposal to process and archive the applications, nothing more.
Then the same offices are responsible for faciliating the ratification process where they count the number of states that ratify each amendment. It must be 3/4s or 38 states of the 50. That’s a really high bar so it’s laughable that anyone would use scare tactics that a runaway convention would dramatically change the government frame work of the United States.
And most states are red conservative so a reasonable person can only think that those using scare tactics to discourage a convention are doing so because they are frightened to death that conservatives will amend the Constitution to make for a more conservative government.
> “Congress shall decide the mode of ratification.”
Yes, either they choose to have federal offices respond to state legislatures or to state delegations elected for the purpose. But they have no say in any of the deliberations after the choice is made.
The Article V power given to Congress to decide the mode of ratification was written at a time the 17th Amendment did not exist. At that time the members of the US Senate were appointed by their legislatures. If an amendment issue was more populist than legislative, then Congress could decide to allow delegations to communicate results because it would be closer to the People.
But Congress gets only to decide the mode as via state legislators or delegates, and after that there is no Constitutionally mandate for anything else.
> “How is a Constitutional Convention called by Congress and verified by methods determined by Congress a Convention of States independent of federal control?”
That’s easy. Congress has a very small role in setting up a convention. Namely, they call for it and they decide whether ratification is via state legislatures or state delegations. The role is small but necessary because the states will be writing and ratifying new amendments that must find their way into the Constitution and for this purpose there must be some communication with federal government at some level. The National Archives is the main federal organization that is the link with the states.
As for the original Constitutional Convention, this was called for the express purpose of replacing the Articles of Confederation, not for amending the AOC but for ‘replacing’ it. The AOC had an amendment provision in it but it was not used. The Founders knew when the AOC was written that it setup a framework for a provisional government that would require a more permanent framework later.
But a Convention of States is for amending the existing Constitution, not for replacing it. And to guard against replacing it by creating a ‘Runaway’ Convention, the Framers set the high bar to at COS could not convene until 2/3s of them applied, and 3/4s ratified.
There is no danger of a Runway Convention and there is no heavy control or mandate granted the federal government.