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How a ‘Convention of States’ Really Works

Posted on Wednesday, September 25, 2024
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In an earlier, widely shared essay I contended that state legislatures should require Congress to call a “convention of the states.” Article V of the Constitution empowers such a convention to propose constitutional amendments to correct federal dysfunction. Any proposals would have to be ratified by three-fourths of the states (38 of 50).

The Constitution’s framers added the convention mechanism to allow states to bypass Congress and amend the Constitution if the federal government abused or exceeded its powers.

This essay explains how the procedure works. This information comes from many years of academic research on the constitutional amendment process. No one paid for my conclusions, and they sometimes contradicted my earlier beliefs.

Opponents of our Constitution have disseminated a mass of falsehoods about the document—for example, the charge that it discriminated against women. But none are as widespread as falsehoods about the amendment process.

This is no accident: A disinformation campaign began in the 1960s and continues to the present day. Liberal commentators initiated the campaign (pdf) to frighten the public against a convention. They feared that it might propose amendments to overturn liberal Supreme Court decisions or require a balanced federal budget.

Establishment newspapers (pdf), among them the Washington Post and the New York Times, aided the campaign. Academics—whose only unifying characteristic is that they have no scholarly publications on the subject—joined the chorus.

This disinformation has been so successful that many Americans have been duped into thinking that the convention procedure is somehow evil. In fact, it is one of the Constitution’s most important checks and balances. Many of our current ills flow directly from our failure to use it.

Convention opponents often claim that constitutional amendments will have no effect. History shows they are flat wrong. Over the past 230 years, amendments have been powerful tools for reform. We obtained our Bill of Rights through amendments. The Civil War did not finally abolish slavery; an amendment did that. Amendments have curbed abuse of minorities, assured women the vote, and limited the president to two terms.

Think about it: Would we be better off without the First Amendment’s protection for freedom of speech and religion? Would we be better off without the 22nd Amendment’s two-term limit on the president? I’ve never met anyone who believes either of those things. But how many believe we should extend term limits to Congress or the Supreme Court? Towering supermajorities of Americans.

Why hasn’t it happened? Because Congress refuses to propose a term limits amendment, and we haven’t had the guts to call a convention to propose one.

The Founders created the amendment process for four distinct reasons: to resolve disputes over constitutional interpretation, correct drafting defects, respond to changed conditions, and forestall and correct abuses. During the first 15 years of federal operations, the founding generation adopted amendments for all those purposes. Opponents err when they claim that the only reason for the amendment process was to correct drafting errors.

Article V outlines the amendment process, but like any other part of the Constitution, you must read it in historical context. Every informed student of the Constitution knows that when the document uses specialized phrases, we have to examine the historical record to fill in the details. The Supreme Court recently did just this with the constitutional phrase “trial … by jury” (pdf).

Fortunately, the amount of historical and legal clarification we have for Article V is enormous, so when you hear charges that Article V is “vague” or “sketchy,” chalk it up as a confession of ignorance.

Article V tells us that before the states may ratify an amendment, it first must be formally proposed. It provides four paths to amendment. (Common claims that there are only two methods are also erroneous.) The paths are:

(1) Proposal by two-thirds of each house of Congress, followed by ratification by popular conventions in each state. This method was used to adopt the 21st Amendment, repealing Prohibition.

(2) Proposal by two-thirds of each house of Congress, then ratification by state legislatures. This method was used for the other amendments.

(3) Proposal by a “Convention for proposing Amendments,” then ratification by popular conventions in each state.

(4) Proposal by a “Convention for proposing Amendments,” then ratification by state legislatures.

A “Convention for proposing Amendments” is merely one kind of convention of the states. There is no serious doubt about this: The historical evidence is massive (pdf) and includes a decision by the U.S. Supreme Court (pdf).

The Founders chose the convention-of-states device because it had been widely, and successfully, used (pdf). The first gathering of that sort (actually a convention of colonies) had been held in Albany, New York, over a century earlier. There had been about 20 more during the colonial era, and another 10 between 1776 and 1787.

Since 1787, they have continued at a slower pace, but they have continued. The latest was held in Phoenix in 2017.

Most interstate conventions have been limited to colonies or states within a particular region. But at least seven have been “general” (national), including the 2017 Phoenix confab.

These gatherings have addressed many kinds of problems. Some early ones coordinated local defense. The 1787 convention proposed the U.S. Constitution. An 1889 convention proposed anti-trust laws. Some 20th century conclaves negotiated western water compacts. A few, most notably the 1861 Washington, D.C. convention, proposed constitutional amendments.

Thus, another common claim—that the 1787 gathering is the only convention precedent—is also wide of the mark.

An early draft of the Constitution would have allowed a convention of states to both propose and ratify amendments. (Opponents’ contention that an amendments convention was merely the framers’ afterthought is likewise erroneous.) In the final draft, either Congress or a convention could propose and only the states could ratify.

When the Constitution became public, many people were concerned that it gave the federal government too much authority. The document’s supporters, however, pointed out that the convention mechanism gave the states complete power to amend—even against federal opposition. Without the convention device, the public probably would have rejected the Constitution. Indeed, without the threat of an amendments convention, Congress probably never would have proposed the Bill of Rights or the two-term limit on the president.

The convention of states procedure begins with an invitation known as a “call.” For most conventions, a single state can issue it. For example, the state of Virginia called the 1787 Constitutional Convention, set the place and time, and defined the convention’s purpose. (The common story that the Confederation Congress called the convention, which then exceeded its power, is another fable (pdf)).

But for conventions formally proposing amendments, Article V prescribes a uniform method of call: When two-thirds of the state legislatures (34) adopt “applications” demanding that Congress call a convention on a particular subject, Congress must call. Its call sets forth the place, time, and state-designated subject matter.

Then the legislatures of the participating states either select their convention commissioners (delegates), or designate procedures for doing so. The states give the commissioners their instructions and define their powers (“agree to this, don’t agree to that”). Modern claims that a convention of states is “uncontrollable” are wildly erroneous. So also are assumptions that commissioners are popularly elected.

The convention then meets at the prescribed place and time. No state is forced to attend, but if a state does not do so, obviously it cannot vote—although it can refuse to ratify.

Convention-of-states procedures are well established. Each state has as much voting power as any other state. No convention has ever changed this rule. So the common claim that convention voting standards are a “mystery” is likewise wrong. So also is the myth that Congress can control a convention.

The convention next adopts rules, elects officers, and sets up committees. It debates whether to propose amendments within its area of authority. If it decides not to, then it adjourns. If it decides that amendments are warranted, it drafts them, formally proposes them, and adjourns. A convention is, by definition, temporary.

In addition to being constrained by the call and by state instructions, the Constitution limits the assembly to proposing amendments to “this Constitution.” Frantic claims that it’s a “constitutional convention” … or that it can issue a new document or “radically re-write” the existing one … or change the ratification procedure—none of these have any legal or historical basis. They are, in the words of one constitutional scholar, “rhetorical ploy[s] to terrify sensible people.”

After one or more amendments are proposed, the ratification procedure is the same as for any other amendment.

The courts may resolve disputed questions. In fact, there have been nearly 50 reported judicial decisions on Article V from all levels of the judiciary. The first reported case was issued in 1798, the two most recent in 2018. The principles for applying Article V are well established, and rely heavily on historical practice. The common claim that courts do not adjudicate Article V cases is categorically false.

What kinds of amendments might a modern convention consider? Fifteen state legislatures have adopted applications based on a model proposed by the “Convention of States Project:” a convention limited to proposing (1) term limits for federal officials, (2) fiscal limits on the federal government, and (3) reductions in the size and scope of the federal government. Topics outside those three items would be outside the convention’s scope.

Twenty-eight states have passed applications for a convention limited to a balanced budget amendment. Several states have passed applications for congressional term limits or campaign finance reform.

No significant national group is pressing for a “plenary” or unlimited convention. Unlimited conventions have been rare at the state level and nonexistent at the federal level. And with good reason: A convention is a task force, and when you convene a task force you give it a specific job. You don’t say, “Do whatever you want and propose whatever moves you.” Moreover, there are multiple enforcement mechanisms to ensure a convention remains within its agenda. Contrast that with the lack of restraint on Congress.

In my view, a constitutional amendment imposing term limits or imposing more limits on Congress would be a good idea. True, some argue that we should continue to rely on remedies like electing good people, lobbying, bringing lawsuits, and public education. I’m in favor of those things, but we’ve been doing those for decades and our country is worse off than ever. Reforms by even the wisest federal officials have proved to be short-lived. A course advocated by some of the woolier organizations, widespread nullification, is both impractical and likely unconstitutional.

So what remains is the course the Founders themselves prescribed: a convention of states for proposing corrective constitutional amendments.

Let’s get it done.

Robert G. Natelson, a former constitutional law professor, is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver, senior adviser to the Convention of States project, and moderator of the Article V Information Center website. He is the nation’s most published active scholar on the constitutional amendment process. He authored a legal reference book on Article V.

Reprinted with Permission from The Epoch Times – By Robert G. Natelson

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.

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J. FARLEY
J. FARLEY
15 days ago

I am all for a Constitutional Convention, so long as the original 10 Amendments (Bill of Rights) cannot be altered, in the process, except for reaffirming and made more protective of those rights!
An oath of office for people working for the Government should include that they will protect and defend the Constitution and if they don’t, they can receive death or imprisonment punishment!

Clifford Moore
Clifford Moore
15 days ago

Get on board the Convention of States Project. Contact Mark Meckler.

Rhonda
Rhonda
15 days ago

Great article. I am in favor of a convention of States.

Summer Sands
Summer Sands
15 days ago

This is a great article and should be put in every history class in our schools. Oh wait…do we even teach actual American History in school or is it some bastardized version that is nothing but lies?

What’s truly sad about all this is that the majority of American Citizens don’t even know what our Constitution says as they’ve never read it. I find that pretty disgraceful considering you can get free copies of the US Constitution and Bill of Rights from many places if you just ask. You can go directly to the National Archives website and print a copy of all of our founding documents. You can search the web and find places to order printed copies that require you to pay around four dollars for shipping. Everyone should know and understand the Constitution and Bill of Rights. Know what you stand to lose when you ignorantly vote for communism and socialism.

Bill Harenburg
Bill Harenburg
15 days ago

Yes! We need this. Congress will not impose term limits on themselves and the federal debt is totally out of control. We need to give the States more power to offset the federal government. Once we call a convention and propose amendments we should also think about calling a convention every 5 years to keep the pressure on congress to behave according to We The People’s desires.

Summer Sands
Summer Sands
15 days ago

If you want to know more about the Convention of States and the movement that’s been in the process since 2013, go to their website (conventionofstates dot com), read, and sign the petition. I learned about this many years ago from Mark Levin.

Richard
Richard
15 days ago

Thank you AMAC for this excellent article. I would hope that you can put this in your great monthly magazine

Chuck
Chuck
14 days ago

too much to rebut there except to say (1) The 1887 call for a convention was to make amendments to the Articles of Confederation. They ended up changing everything, including the rules (eg, 9 colonies rather than 13 to approve) and came up with our U.S Constitution. (2) I have a list of some of the most prominent constitutional law scholars in the U.S. that unequivocally assert that a con-con cannot be limited to one issue if the delegate so choose. (3) Yes, there have been 27 amendments approved to the constitution. But each one has been a single debated issue and all states then voted on that issue. Some passed, some failed upon introspection, Why not continue the SAFE method? Do we really want to risk all the crazies taking to the streets again fighting for the myriad of amendments that might be considered all at once?

Poppy that
Poppy that
14 days ago

The constitution didn’t discriminate against women. look at how many of them could do all the things men could do when it written! Like vote! Or tell a man what to do! Lol

NeilRK
NeilRK
14 days ago

The one problem is that the Convention of States has to be called by Congress. The Democratic controlled Senate would never allow that.

Robert Deighton
Robert Deighton
14 days ago

The pending COS for a Balanced Budget has 28 states aboard, ten more are needed. It will be several years before a COS can actually be effective. In the meantime, INTEREST debt service on the $35+ trillion debt is now more than one trillion dollars a year! About one-half of the present low-interest debt will mature during the next three years. How will they be paid? The government will add more debt at higher INTEREST; and debt service will chew up even more of the budget. The ONLY way to reduce interest is by paying down the PRINCIPAL. The government has no plan, or intent, to pay down the principal. We do. MFS Patriotic Capitalism has a proposal for AMAC. It’s time to renew our discussions. Let’s talk.

Gregory Watson
Gregory Watson
14 days ago

One thing that would be helpful would be to send duly-certified copies of these Article V Convention resolutions to both houses of the U.S. Congress after they have passed the various state legislatures. In far too many instances, either (A) only one house of Congress formally receives the resolution from a particular state legislature or (B) neither of the two houses of Congress officially receive it. Recent examples would be Louisiana’s 2016 Senate Concurrent Resolution No. 52 and Utah’s 2019 Senate Joint Resolution No. 9 both of which were received by the U.S. House of Representatives, but NOT received at all by the U.S. Senate. And in the recent case of Nebraska’s 2010 Legislative Resolution No. 538, neither house of Congress has received it. NOT receiving formal copies of these resolutions gives the U.S. Senate and / or the U.S. House of Representatives a perfect excuse on a silver platter to refuse the calling of such a Convention, as commanded by Article V when the required threshold has been achieved in the state capitols. Transmitting properly-authenticated copies of these state legislative resolutions to both houses of Congress is a relatively simple task–yet in so many instances it fails to occur–either due to incompetence or to sabotage.

Cindy Sanderson
Cindy Sanderson
15 days ago

It would be CRAZY to open the Constitution to change in today’s current environment. Our Congress is heavily controlled by Democrats & RHINOs. They would jump on a chance to so called, “modernize” the Constitution.
There is a tool NOW available that would work far better & not be so dangerous to the Constitution. It is called “Nullification”. A ruling can be thrown out if it is not in line with the Constitution

L. Jean Garcia
L. Jean Garcia
14 days ago

The late, great, Associate Justice of SCOTUS and Professor, Antonin Scalia, in the months before his death, STRONGLY CAME OUT AGAINST the Convention of States; stating that the C of S could not possibly be limited since the political climate has become so changed, so charged & so dangerous to the Constitution. Do not open the Constitution to change. Look this up!
Back in 1979 Scalia did suppot the C of S. Meckler is wrong using Scalia’s 1979 information & ignoring Scalia’s modern reversal. I have told Meckler’s people this fact & it has been ignored. Not ethical!

Robert Zuccaro
Robert Zuccaro
15 days ago

Only if they make “flyover” states their own country where Democrats are not allowed… other then that leave my Constitution alone!

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