Article V Convention
In 1787, following the Revolutionary War, delegates from 12 of the 13 states met in convention to revise the Articles of Confederation. However, it quickly became apparent that there was too much to fix: they needed to start over. And as you know, they threw out the Articles of Confederation and wrote an entirely new Constitution. In other words, they had what is commonly referred to as a runaway convention: the delegates exceeded their original mandate. Interestingly though, they did not do anything wrong when they threw out the articles because sovereignty lies in the people. In fact, our Declaration of Independence specifically states that it is the right of the people to alter or abolish their form of government.
Today special interest groups and individuals are pushing for another Constitutional Convention because they believe that a convention is the only way to reign in our out of control federal government. In 2019, under Article V of our Constitution, our Utah Legislature passed a joint resolution sponsored by our Southern Utah Senator, Evan Vickers. This resolution was an application to Congress calling for a convention of the states in order to discuss potential amendments to the Constitution.
Today I want to talk about Article V of the Constitution – what it is, why some people are in favor of using it to call a convention of the states, and why I believe we should be worried that this convention could turn into another so-called runaway convention – this time without the benefit of our founding fathers. Instead, we would have the politicians of today, whom I might add created this out of control government, running the show.
Like I said earlier, our Declaration of Independence specifically states that it is the right of the people to alter or abolish their form of government, and we have altered our government. In fact, we have amended our Constitution 27 times. However, in over 233 years we have not once altered it through the use of a constitutional convention. And by the time I am finished, I hope it will be apparent why.
As you know, there are 7 articles in our Constitution, each article deals with a different subject. Article V specifically deals with the way we can amend the Constitution. Article V gives 2 ways that amendments may be proposed, 2 ways those amendments may be ratified, and 2 things that can not be amended.
So let’s dive into Article V for just a minute. It says, “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, (that is the first way that amendments can be proposed – by ⅔ of both houses of Congress, and in fact this is the way that all 27 of our amendments have been proposed).
Now, once an amendment is proposed, there are 2 ways it can be ratified. The first way is ratification by the legislators of three-fourths of the several States. So if ⅔ of the US Congress proposes an amendment right now and sends it to the states, our state legislature would vote on it. And if ¾ of all the legislatures in all 50 states approve it, it would become the law of the land and be added to our amendments. (26 of our amendments were ratified this way).
The only amendment that was not ratified this way was the 21st Amendment: the repeal of prohibition. And guess why it was not sent to the state legislatures for ratification. Because the US Congress knew that it wouldn’t pass. They would not be able to get enough states to ratify it, and they knew that Utah was one of those states whose legislature would not pass it. So they strategically chose to have it ratified the 2nd way. And their plan worked. It passed! Does that surprise anyone?
So what is the 2nd way to ratify an amendment? It is through a special state ratifying convention. In a state ratifying convention, people are called together from the state, and then they vote on whether to accept or reject the amendment.
So who makes the rules for the state ratifying convention? Who chooses the delegates? The answer is the states themselves choose, and every state can do it differently. The state chooses their delegates and decides the rules for the ratifying convention. Our Utah code has 4 pages of instructions and rules in case there is the need for a Utah ratifying convention.
So we have talked about 1 way of proposing an amendment, and we have discussed the 2 ways of ratifying an amendment.
Now let’s get to the main topic of our discussion which is the 2nd method of proposing an amendment. They call it an article V Convention, a Convention of the States, a Constitutional Convention, or a Con Con. They all refer to the same thing.
Article V states that either ⅔ of both houses of Congress propose an amendment (that was the first way we talked about) OR on the application of the legislators of two-thirds of the several states. That is the 2nd method of proposing an amendment. Just like our Utah legislature did in 2019, states vote to send an application to Congress to call for a convention for proposing amendments to the Constitution.
Now, if ⅔ of the states apply to Congress, then article V says, Congress shall call a convention. Shall in legal terms means will, not if they want to or think it is best, they will. So the states force Congress to call a convention. Then what? Who is in-charge of the Constitutional Convention? Who makes the rules for the convention? Who sets the agenda? The answer is Congress sets the time and place. Congress may also try to limit the convention or set an agenda, but as Don Fotheringham has said, “When the delegates convene at the time and place appointed by Congress, they are in full charge of the convention, regardless of anything in the state or congressional resolutions. They elect officers, assign committees, make their rules of order, and set the agenda. Conventions operate under the inherent authority of a free people. They can create, alter, or abolish government.” Let that sink itn. This is very important to understand. This is the danger of a constitutional convention.
Remember what happened with the first Constitutional Convention. The delegates were given the responsibility to revise the Articles of Confederation, but what did they end up doing? They threw out the articles entirely and wrote a whole new Constitution. They also changed the rules for ratification. Originally, all 13 states had to vote in favor of the Constitution. It had to be unanimous, but the convention changed that to only 9 states. So could that happen today? Could they throw out the Constitution or at the very least change it badly? Could they change the ratification requirement to require only a bare majority – say 26 states? Absolutely! It is a perfect opportunity for a runaway convention.
Organizations like Convention of the States and people like Senator Vickers and Mark Levin who support a Constitutional Convention claim that adequate safeguards can be put in place to protect the Constitution from dangerous changes.
But this is what former Supreme Court Chief Justice Warren Burger said in regard to calling an Article V Convention, “I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or to one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda…” That warning came from a former Chief Justice of the Supreme Court.
And think about this, Utah is supposedly one of the most constitutionally conservative states in the country, but you and I know that the majority of our elected officials are not at all the kind of people we would want to entrust with the kind of power that exists in a constitutional convention. And don’t forget – there is no way of knowing today who your delegates will be. Can you imagine if we had Mitt Romney, Nancy Pelosi, or Governor Cox as delegates? Would you trust them with power to rewrite our Constitution?
I would say that there is a much safer and better way to control our government than convening a constitutional convention. It is found in article VI of the Constitution, where it states that the senators, representatives, members of the state legislatures, and the judicial officers are bound by oath or affirmation to support the constitution. Imagine that! What if we focused on the rule of law and followed the Constitution rather than try to change it? The problem isn’t the Constitution. The problem is that our state and federal officials are not supporting our Constitution. They should be nullifying unconstitutional laws. Our state officials should be standing up to the federal government and telling them explicitly, “That is not going to happen in Utah!” Common Core and Obama Care are perfect examples of opportunities to nullify unconstitutional federal laws. And if they are not going to support our Constitution, we need to get rid of them and replace them with representatives who will.
In 1983, 32 of the necessary 34 states needed for a constitutional convention had filed their application. The supposed reason was a Balanced Budget Amendment (although – again – we would not need a balanced budget amendment if the government would stay within its constitutional limits). Fortunately, because of people like our own Don Fortheringham and others who practically gave up everything else in their lives to educate citizens and legislatures all over the country about the dangers of a con con, disaster was averted and 16 states rescinded their applications.
However, today the movement is picking up speed again and some states have renewed their applications. We now have 28 states with active applications, and Utah is one of them. We are only 6 states away from an article V Convention. I believe that the Constitution is not the problem. Not following the Constitution is the problem. We don’t need to change the Constitution. We need to follow it. We need to prevent an Article V Convention, and we can do that by educating our friends, neighbors, and elected officials about its dangers.
I would like to close with this quote by Don Fotheringham who said, “There is a little matter of hypocrisy in the push for a con con. The powerful groups that push for this like to emphasize the need to ‘rein in our out-of-control federal government.’ But they never ask the states to give up the huge federal subsidies they receive every year. I think Utah gets something like $1.4 billion. The national total is about $3 trillion. Something’s fishy here, don’t you agree? The fishy part is that those who fund the con con effort do not give a damn about the budget. They want a convention in order to change our form of government. That’s why we must fight this with all the energy we can muster.”
I would encourage you to study this issue and if you agree with us that a Constitutional Convention is not the answer to our nation’s problems, please contact your legislators and ask them to rescind Utah’s application.