Part 3/3: Conservative Infighting Over Article V — Arguments Against a Convention

by Rick Bulow, Rick’s Civics Blog — May 16, 2015


u-s1Robert G. Natelson continues in his dissertation on the Liberal establishment’s disinformation campaign against an #ArticleV Convention1 by speaking as to why there are some who oppose such a Convention.

Opponents present an array of stock arguments against using the Constitution’s convention procedure. One such argument—the claim that “amendments won’t work”—has been so resoundingly contradicted by history that it has little credibility. The others can be distilled into the following propositions:

• Little is known about how the process is supposed to operate;
• a convention for proposing amendments would be an uncontrollable “constitutional convention;”
• a convention for proposing amendments could be controlled or manipulated by Congress under the Constitution’s Necessary and Proper Clause; and
• a convention for proposing amendments could unilaterally impose radical constitutional changes on America.

These arguments are largely inconsistent with established constitutional law and with historical precedent, and (as the reader can see) some are inconsistent with each other.

This paper shows that these arguments did not originate with the conservative groups that rely on them. Rather, they were produced as part of a disinformation campaign run by America’s liberal establishment. Members of that establishment injected these arguments into public discourse to cripple an important constitutional check on the federal government.

This disinformation campaign dates from the mid-20th century. Its participants included members of Congress who feared that a convention might propose amendments to limit their power, activist Supreme Court justices seeking to protect themselves from constitutional reversal, and left-of-center academic and popular writers who opposed restraints on federal authority.

The campaign succeeded because its publicists enjoyed privileged access to both the academic and the popular media. The fact that many conservatives swallowed the propaganda enabled liberal activists to recede into the background and rely on conservatives to obstruct reform.

We can see in Natelson’s own piece entitled The Lamp of Experience: Constitutional Amendments Work2 that the argument against an #ArticleV Convention has little to no credibility. In fact, there are some conservative people  (like Joanna “Publius Huldah” Scutari and her ilk) and organizations (like the John Birch Society, who had at one time supported – yes, SUPPORTED – an #ArticleV Convention of the States in what was called a “Liberty Amendment” back in 19754 and the Eagle Forum) who swallow said lies about #ArticleV hook, line, and sinker without actually vetting and researching their information. Let me go through a couple of said objections and try to #RejectFalsePremises.

The main one that sticks out to me like a sore thumb is the objection that “a convention for proposing amendments could unilaterally impose radical constitutional changes on America.” I would counter with the fact that yes there are some amendments (like the 16th which brought about the Income Tax and the 17th which removed the States from having a voice in the Senate thanks to the Senators being elected directly by the people and not State Legislatures) that imposed radical constitutional changes, but there are also a couple of other amendments (like the 13th which abolished slavery as well as the 22nd which limited the President to 2 terms like George Washington had intended by his own action when he refused to run for a third term as President) which did not impose any radical changes but rather limited the government as was intended.

The second one which sticks out to me is the objection that “a convention for proposing amendments could be controlled or manipulated by Congress under the Constitution’s Necessary and Proper Clause.” That clause is as follows:

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.5

Those who are against an #ArticleV Convention take this to mean that Congress decides who the delegates are for the Convention, as well as where the Convention is and when it is held. Let me remind you of the words in #ArticleV once more:

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 Congress6

There is nothing in there about Congress deciding who the delegates for a convention for proposing amendments would be. Just that Congress shall call for the convention. We rely on history, and – as had been pointed out in prior entries – the first ever application for a Convention of States was Virginia in 1788. There have been over 400 applications for a Convention of States for the purpose of proposing Amendments submitted to Congress since 1787, but they were not considered because it did not have the necessary 2/3 agreeing on the same subject. In order for a convention to be called, there has to be 2/3 having the same verbiage and agreeing on the same subject. That is what the Convention of States application and resolution is.7

In conclusion, we can see just as Natelson says in the Article V Handbook put out by the American Legislative Exchange Council (ALEC) entitled Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers, “there are far more political and legal constraints on a runaway convention than on a runaway Congress.”8

_______________________________________________________________________________________________________

1 Robert G. Natelson “The Liberal Establishment’s Disinformation Campaign Against Article V —and How It Misled Conservatives” pp 3-4 (found athttp://constitution.i2i.org/files/2015/03/Campaign-v.-Article-V.pdf)

2 Natelson “The Lamp of Experience: Constitutional Amendments Work” (found athttp://constitution.i2i.org/2014/03/09/the-lamp-of-experience-constitutional-amendments-work/)

3 Not to be confused with the book “The Liberty Amendments: Restoring the American Republic” by Mark Levin

4 Congressional Record October 9, 1975 (found athttp://www.libertyamendment.com/mcdonald.html)

5 United States Constitution Article I, Section 8, Clause 18

6 United States Constitution Article V

7 You can find the application that the Convention of States uses to call for a convention at http://www.conventionofstates.com/application_pdf

8 Natelson “Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers” p. 18 (2d ed., 2013) (found athttp://www.alec.org/docs/ArticleVHandbook.pdf)

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