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The Article V State Convention Process, Explained

The following is an excerpt of an interview by talk radio host and constitutional scholar Mark Levin of Rob Natelson, former constitutional law professor at the University of Montana and currently the senior fellow in constitutional jurisprudence at the Independence Institute and Montana Policy Institute. Natelson is the foremost expert in the state convention process, as outlined in Article V of the U.S. Constitution. 

In his new book, The Liberty Amendments, Levin proposes that three-fifths of the state legislatures petition Congress under Article V to convene a state convention, for the purpose of considering new constitutional amendments with the goal of reigning in an all-powerful central government and federal judiciary, thereby restoring the proper constitutional balance between the people, states and the federal government.  

Levin and Natelson discussed the Article V state convention process on a recent broadcast.

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Levin: I just think it’s time to really address the myths and the deceit and falsehoods and whatever we want to call them. People who want to attack this constitutional process that the framers gave us. I’ve had enough of it. … I want you to explain to us…just the basics of how this state convention, or amendments convention process works.

Natelson: Sure. The founders had a long experience of conventions among the states. The states would send representatives, they would be given an assigned job to do, they would make a proposal, they would go home. And so, when the constitutional convention was considering how to amend the instrument, as you have pointed out on your show, George Mason said we need a way to get a procedure for having to propose amendments…bypassing Congress, because Congress could become abusive or exceed its power. The other founders agreed, and they wrote this into the Constitution.

Basically, what it provides for, is that two-thirds of the state legislatures, that’s now 34 state legislatures, pass resolutions directing Congress – they’re called applications, but they’re mandatory – directing Congress to call what the Constitution calls a convention for proposing amendments. And they specify, in general, what kind of amendment they want.

Congress calls the convention, it specifies the place and time, it states the purpose of the convention…

Levin: And then that’s it. Congress is done.

Natelson: Well, that’s right. Congress’ role is – and you use this term in your book – ministerial. That’s exactly right. … And then the states come together. Each state legislature appoints its delegates, and those delegates meet in the place of the convention, they vote one state, one vote, and they decide whether to propose an amendment based on their agenda. And then, if they do, the amendment goes through the same ratification process any other amendment goes through.

Levin: Well, where did this notion of a “runaway state convention” process come from, which is repeated endlessly now.

Natelson: Well, that is a very good question. One of the things I do is I track down constitutional myths, and this one is a classic.

It was first mentioned in the nineteenth century, about a century after the founders, but it really got a lot of publicity in the 1960s, 1970s, from left-wing sources. In other words, people who were arguing against an amendment to rein in the Supreme Court, or arguing against an amendment for a balanced budget. … But it’s one of the great ironies of history that some groups on the right have, you know, not knowing where these arguments came from, have picked them up and now used them as a reason to oppose an amendments convention.

Levin: And how could you even have a runaway convention? The state legislatures are appointing the delegates with a specific subject in mind and sending them there, and they have the power to pull them back and ultimately, the several states have the power to ratify… How does this become a ‘runaway?’

Natelson: Well, it, it really can’t. I mean, we have a runaway Congress, that’s the reality.

Levin: Exactly.

Natelson: That ‘runaway convention’ stuff is a myth. But, part of it is misunderstanding. I mean, they don’t understand that these delegations are appointed by the state legislatures, they don’t understand the state legislatures can pull them back. I think that some of them have the vision – and this is, you know, this is why they shared it one time – a vision for proposing amendments that is some massive national assembly elected by popular vote around the country, and can be stampeded. But that’s not the way it was set up at all. The founding-era record makes that very clear.

Levin: What about people who say, ‘Well, yeah, that’s all great, but, you know, they met in Philadelphia to amend the Articles of Confederation, and what they did instead is they threw them out and they replaced it with a Constitution. That’s an example of a runaway convention.’ Now, I know what you say, but how would you answer that?

Natelson: Well, I’d answer it exactly the same way you did the other night. And that is to point out that, number one, contrary to mythology, Congress did not call a constitutional convention. The constitutional convention was called at the recommendation of a convention that had occurred the previous year, and it was called specifically by resolutions from Virginia and New Jersey. It was called outside the Articles of Confederation, that’s why it wasn’t bound by the Articles of Confederation.

The delegates were duly appointed by the state legislatures, with one exception, and that person was appointed pursuant to a resolution of the state legislature, and they got together in Philadelphia and when they were commissioned, they were given their instructions, they were given documents, and those documents told them what they could and could not do. Congress passed a resolution but Congress really had nothing to say in the matter. It was the states that commissioned their delegates, and if you look at the commissions, you find out that of the 12 states that participated, 10 of them sent commissions that were broad enough to go beyond amending the Articles of Confederation, and most of the delegates from the two states that didn’t have that authority didn’t sign the Constitution. So it was a convention given responsibility to recommend an entirely new political system, and that’s what they did. These were men of honor, and frankly this smear against the founders, that they exceeded their authority, has gone on for too long.

Levin: That’s gone on for too long, this stuff about how you and I and others, we pretend we’re smarter than James Madison and Benjamin Franklin and George Mason – we do no such thing. We’re looking at history, we’re looking at scholarship – much of which is yours – we’re looking at the Constitution itself…did they not write these words? Did you write them, or did I write them?

Natelson: (Laughs). The founders wrote them. The founders wrote Article V, and they intended for us to use that route for precisely this situation. I mean, an abusive, runaway Congress was something that they feared and so they wrote into the Constitution precisely this mechanism for dealing with it.

….

This isn’t a constitutional convention. We’re not trying to write a whole Constitution here. What’s going on is that delegates from the state legislature(s) will be charged with the responsibility of writing one or more amendments as proposals. Period. And then those proposals will go to the states for consideration.

[Critics of this process say], ‘Gee, Article V, there’s so much there that isn’t explained. How do know what the founders meant?’ Well, if you take the time to go back and look at the history that the founders were dealing with and the fact that many of these people at the constitutional convention in Philadelphia were old convention hands themselves…[so] they didn’t have to itemize everything in Article V. They kept it short, the way they kept the rest of the Constitution short.

Read more about the effort to convent a Convention of the States here. My take on this can be found here.

4 comments

  1. This discussion is so wrong. There is no way to control the Article V convention. Our constitutional convention was only supposed to slightly tweak the articles of confederation, but we ended up with an entirely new kind of government. That time, it turned out well, but we don’t have the same kind of intelligent and well-informed people involved today. I doubt this would be true now.

    Also, why do we think that we can reign in government officials, that won’t obey the clear words of the constitution, by changing the words of the consitution. If they won’t obey it now, then they won’t obey the new words either. The only way to make a difference is to totally change who we send to DC. Unfortunately, I have my doubts on whether we can get enough Americans to vote for liberty, integrity, humility, and the rule-of-law. It might take a total collapse of our money and our government, to wake people up enough to change the way they vote and to really investigate the people running for office.

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  2. First of all, I find this article to be disingenuous when it attempts to parallel the framers convention (which operated in secret BTW as delegates were sworn not to disclose the contents of the convention until after the current Constitution was presented.) and the men whose character was quite different then with a Con-Con of today.

    It is imminently clear that the parallels of the representatives of that day have no similarity to the representatives of today based on evidence of action. The vast majority of our representatives today in both houses demonstrate a complete disregard for the Constitution and its explicit directive to create a limited Federal government which has now produced a national debt of $17 Trillion and annual deficits above the UnConstitutional income tax collected of over $1 Trillion since Obama took office.

    Our freedoms have nearly disappeared and by accepting executive orders as valid and law, all of the pieces are in place to create a police state upon demand when deemed necessary.

    And these are the people you want to entrust a Con-Con to? Insane!

    Then, you have a public that complacently allows these politicians to get away with the erosion of our Constitution and liberties while they flock to entertainment events or spend their time following TV series or reality shows. This is who you would expect to safeguard our Constitution and Bill of Rights? Once again, an insane expectation.

    Talk about myths. Entrusting a change in our Constitution to the aforementioned above and expecting to produce positive change is about as big a myth as I think one could create.

    First of all, time and effort would be better spent educating people on the Constitution we already have and forcing elected representatives to adhere to their oaths of office or be booted out at the next election. An informed electorate and carefully watched voting processes (which would include returning to paper counted ballots since it has been proven that electronic voting is rife with corruptible elements which I can attest to as being easily done since I work in information technology.) can completely replace our House every 2 years if necessary until we scared politicians into adhering to the their oaths of office which require them to uphold, protect and defend the Constitution.

    We don’t need a NEW Constitution. What we really need is to use the one we already have as it was originally intended. The problem is not the Constitution but rather the manner in which it is applied which has no resemblance to the original intent of limited government existing only to protect our natural rights and defend our nation mainly against external invasion and create a uniform trading block.

    This is typical of the way in which our Constitution has been eroded by the State. First they ignore it which creates the problems we now have of an intrusive Federal government spending us into oblivion through socialist controls.

    Then, the government rides in on its proverbial white horse and proposes to fix the problem they created in the first place with more government.

    Solution- Use the Constitution created in the 1st Constitutional convention as it was originally intended. That would include eliminating UnConstitutional agencies like the Federal Reserve and its income tax. Return to sound money as affirmed in the Constitution. Stop being the policemen of the world and use our military and navy as they were intended rather than the “global force for good” we hear praised in the TV commercials these days. And apply the Bill of Rights as they were intended which includes the right of free speech and the 2nd amendment right to bear arms.

    Eliminate UnConstitutional agencies like the Departments of Education, Energy, etc. Reduce Federal interference in the free market through these agencies and an elimination of all UnConstitutional regulations whereby the Federal government has overstepped its explicitly defined boundaries.

    Within 4 years, our national debt would be halved or more and many of our lost freedoms would be restored. We don’t need a new Constitution, we need to use the one we already have as it was originally intended, i.e., less government NOT more!

    For more on Con-Cons google YouTube for Beware of Article V for a thorough discussion of the text and its meaning. It is not fear mongering to base a decision against a Con-Con on the realities of our present politicians and the electorate who keeps them in office.

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  3. Hopefully any new proposed amendments will support the original Constitution and Bill Of Rights while bringing about necessary goods:
    Must be short, sweet and in layman’s terms (no 100+ pages of legalese)
    No more Career Politicians
    Return to State Appointment of Senators to represent State Interests
    Balanced Budget
    Elimination of the Fed Reserve (bankers’ goldmine)
    Clarification of Executive Branch (all 3 branches) duties and limitations

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  4. I have read Levin’s book and although his suggested amendments sound good at first glance, I would hesitate to meddle with the existing Constitution.

    I would suggest that you read the following, before accepting Levin’s approach to dealing with the current unlawful behavior of our so-called Representatives, Supreme Court and Executive Branch.

    http://publiushuldah.wordpress.com/

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