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.
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.
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.