Article V is perhaps the least understood part of the US Constitution. In general, there is an understanding that it is the amendment process, but how it functions is surrounded by demagoguery that incites the worst fears of the electorate. At the core of that fear is one undeniable fact. Those who push hardest against it don’t believe the American public is capable of self-rule. You may, in fact, be someone who thinks your fellow citizens are a bunch of nincompoops. I wouldn’t necessarily disagree with you, but we really need to show more confidence in our fellow nincompoops. Their liberties are on the line as well.
To be clear, I am not asserting that opposition to a particular amendment is counter to a belief in self-rule. I am asserting that those who are viscerally fighting against the use of Article V for any reason do not believe that the nation that was designed for self-rule is capable of it. Whether they want to acknowledge it or not, they believe that only the established politicians in Washington DC can rule. These people fall into two categories:
- Those who want neither the Republic (as designed by the Constitution) nor a democracy. “The party” is to rule – not the people. They want to inflict a top-down oligarchy (or worse) on the American people.
- Those who believe they are defending the Constitution from a bunch of dolts – that is, you and your state’s elected officials.
The two groups really have related goals; they just have different motivations. The first group wishes to subjugate you to a national government run amok. The second group wishes to disarm you. The disarmers FEAR that the first group will immediately “win” if an Article V convention of states is held. The subjugators KNOW that they will ultimately “win” if an Article V convention is NOT held. Think of Article V as either a “shield” or a “sword” against tyranny. It is clear from the Constitutional Convention notes that the framers distinctly saw it as a shield. If you listen, you will hear the echoes Aristotle’s warning from two millennia ago that defense is necessary to avoid becoming “the slaves of every invader”.[1]
The subjugators
Most folks in this group hold little or no affinity to the ideal of the United States as a beacon of hope for liberty. Their contempt for your ability to self-govern is obvious if you look for it. They don’t believe you can manage your own day-to-day life, let alone govern the nation. They may be born here and are inculcated into a misguided self-loathing, or they may bring tyrannical ideals from another part of the world. Still others are just so greedy that they only see their own profit at the expense of others. The consistent theme is that they believe in central planning that will ultimately direct every aspect of your life and stifle individual liberty. There is no room for individual liberty other than lip service to mask what they are really promoting.
The subjugators give emphasis to visceral priorities that are negative and confiscatory rather than optimistic and productive. They steadfastly refuse to acknowledge that society itself might do an effective job of looking after the needy without government. They will always stir emotions to misalign priorities. This can be detected by merely asking a simple question, “does this really affect me?”. An issue that doesn’t directly affect someone should never find itself at the top of that person’s list of priorities. Self-interest is not a sin. We are all morally obligated to take care of ourselves first rather than become a burden to others. Proper prioritization of issues is essential to finding optimal self-governance amongst all. Subjugators seek to distort these priorities in order to steal your birthright of liberty.
The disarmers
This group recognizes that the national ideal is at stake, but they are stubbornly set on a course that guarantees the ultimate demise of the United States as the ideal for personal liberty and prosperity. They sincerely believe that the people will destroy the gift that the founders left us rather than preserving it. They idolize the founding generation, but ignore their faults (and failures). At the same time, they revile the current generation despite the evidence that it is as talented as the founding generation. One need only look at the technical advances to see men and women of brilliance. Likewise, the willingness of the young to serve repeated tours in a foreign land to protect the homeland speaks to their character as well. In the final analysis, the disarmers don’t believe in you.
The founders had doubts about their fellow citizens; however, they firmly believed that nature had to take its course. When asked what form of government the framers had designed, Ben Franklin famously replied “a republic – if you can keep it”.[2] The implication of this statement is that keeping a republic takes action from the people, not passivity. If the people “outsource” their governance, they get oligarchy or tyranny – not a republic.
The framers knew they alone could not ensure the success of the Republic. The People themselves had to make it a success, but they (the framers) had to have the courage to trust the people. The difference today is that the disarmers proclaim themselves protectors of the Republic when, in fact, they don’t have the courage the framers exhibited to trust their fellow citizens as the framers did. People respond to the trust (or lack thereof) given them.
Why are subjugators fighting so hard?
The “DC Swamp” is comprised of lobbyists, career legislators, bureaucrats, and the media. Not all of these creatures are subjugators, but this is subjugators HQ. None of them are motivated to correct their abuses. Disarmers like to argue that “the Constitution is not the problem”. To demonstrate just how wrong-headed this argument is, consider taming just one of these swamp creatures, career legislators.
The surest way to render career legislators extinct is to limit their terms. The founders actually borrowed the term “rotation of office” from Aristotle. It was considered one of the quintessential “republican principles”. Yet, inexplicably, one of the biggest mistakes during the Philadelphia Conventions was made on 12 June 1787. Without discussion, the convention unanimously approved Charles Pinckney’s (South Carolina) motion to remove the phrase “incapable of reelection for the space of — after the expiration; of their term of service, and to be subject to recall” from resolution 4 of the Virginia Plan. In so doing, the convention removed term limits and recall on the House of Representatives. The original plan made the mistake of not having limits from the beginning on what would become the Senate.
There is no way that Congress will ever propose an amendment to the Constitution to limit their terms or to make themselves subject to recall. They like the “good life” in DC. This is just one example of where, indeed, the Constitution is the problem, and only an Article V Convention can solve it – for the Senate as well as the House.
Lobbyist and bureaucrats can likewise be brought to heel by Article V.
Why are disarmers fighting so hard?
Some disarmers may fight out of fear, but just as many, or more, fight for the same fundamental reasons the subjugators do – power and money. The disarmers use fear of an Article V convention to raise money and membership for their organization.[3]
Consider a real case from history. In Reynolds v. Simms (1964), the Supreme Court ruled that state Senates could no longer be based upon county lines, but had to be apportioned by population – just like the lower house. Prior to this ruling, almost all states used the “Little Federal Model”, where their Senates were apportioned by county. The states immediately recognized that the 10th amendment had been totally ignored and that the guarantee in Article IV Section 4 that the states are guaranteed a republican form of government had been violated. Realizing that the consequences would be dire, the states immediately started petitioning for an Article V convention to overturn the ruling. The states were rallying to protect the Constitution.
As the count neared the required 34, the disarmers took action for the first time. They went on a vicious campaign of misinformation and fear, giving birth to the “runaway convention” myth. As a result, the convention was never called, and the 10th amendment became irrelevant. The result to rural America has been devastating. Small towns across America have been dying ever since.[4] It is a byproduct of the shift in state politics where population centers dominate.
California is a prime example of what has happened. Before 1967, it was a bastion of conservatism. Their forty Senators had to represent between one and three of the 58 counties. Since 1967, the central valley has had no voice in state government. We can thank the disarmers for the devastation.
Now consider any right in the Bill of Rights. It is much more likely that a proposal to repeal any one of these amendments in part or whole would come out of a future Congress than it would out of an Article V Convention. It just takes the right mix of legislators and the Presidency, and the proposal could be sent to the states. Right now the states would most likely reject any tampering with the Bill of Rights.[5] This might not be the case in another generation turn or so. On the other hand, a convention could amend Article V such that no right within the Bill of Rights could be repealed so long as the Constitution is the law of the land.
Not all conventions are created equal
Conventions are not all the same. Goals, size, length, and scope are key aspects of any convention – and they should not be conflated. Opponents of Article V conventions (especially disarmers) insist upon conflating these key aspects with other dissimilar conventions.
Article V is limited in scope.
Article V is really pretty simple to understand. It is a two-step process: 1) amendments are proposed and 2) amendments are ratified.[6] The ratification process always requires ¾ of the states for the amendment to become a part of the Constitution. The demagoguery always ignores this fact. Some are so dishonest to lie that a convention of states can propose and ratify. That is plain and simply not true. No one, I repeat, no one is advocating another constitutional convention, so the ¾ requirement for ratification is cast in stone by Article V of the Constitution.
Subjugators and disarmers both like to use the meme, con-con, to dismiss an Article V convention of states.[7] The epithet is short for “constitutional convention” and is a total deception. By definition, a constitutional convention is outside of the current Constitution. The product of such a convention is a complete constitution, but such a product would still require a ratification process (that is likewise outside of the current Constitution). On the other hand, an Article V Convention simply does not exist outside the framework of the existing Constitution and can only propose amendments to the current Constitution. The only product from an Article V Convention is a set of zero or more amendments. Each amendment must be approved independently by ¾ of the states in the ratification process as outlined in Article V of the existing Constitution.
What we are talking about is allowing the states to convene to consider the first step within Article V of the Constitution, proposing amendments – nothing more. Congress can do likewise at any instant in time, and has done so approximately 11,500 times. Every other part of the process is the same as has been used for every existing amendment. It is an intentionally difficult process by republican design. The rate of success from motion on the floor of Congress to ratification has been less than ¼ of a percentage point (less than one out of every 400).
An Article V convention is NOT a political party convention
A common mistake the disarmers make is that they fail to see the difference between a governing convention of states and a political party convention.[8]
A political party convention is like a pep rally that is loud and incites passions. A state convention is targeted for quiet and thoughtful deliberation. It is almost exactly like a technical design session – of which, I have participated in many.
Party Conventions are controlled by political parties from start to finish. Funding is huge and usually requires big donors.[9] A convention of states is commissioned by the state legislatures and later controlled by the delegates themselves once the convention convenes. Each state pays for its own delegation.[10] It is not paid by donors or the national government. The delegates to an Article V convention are determined either by the state legislatures or the governor, depending upon the state legislative Act. The state legislatures actually named the delegates for the Philadelphia Convention in 1787.[11] On the other hand, the state legislatures all let the governors select the delegates to the 1922 Colorado River Compact.[12]
Political party conventions have potentially thousands of attendees, and only leadership speaks.[13] A convention of states would have at most a couple hundred attendees, and all delegates can get the floor – by an agreed-upon, organized set of rules.[14]
Rules of a convention of states
Disarmers make all sorts of wild claims about what could happen in an Article V convention, but there are three key foundational rules that have been common to all state conventions. They are essential republican principles that separate us from a democracy. In fact, these three rules were enumerated in the Articles of Confederation.[15] The framers should have enumerated them into Article V of the Constitution, but they neglected them:
- A state delegation must be at least two, but not more than seven members.
- “Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.”
- “Each State shall have one vote”. This is the quintessential republican principle.
The voting rule has applied to every state convention since the first day of the First Continental Congress.[16]
No state can vote without at least two delegates. New York commissioned three delegates to the Constitutional Convention. On 10 July 1787, Lansing and Yates left the Convention. From that date forward, New York could not vote. Hamilton was allowed to speak, but he signed the Constitution as a private citizen, not a New York delegate. No state commissioned more than seven delegates to Philadelphia. Eight Pennsylvanians signed the Constitution, but Ben Franklin was not named in the state commissioning act.[17] Nevada sent seven citizens and the state engineer to the 1922 Colorado River Compact.[18]
On the same day that Lansing and Yates left Philadelphia, the Convention sent out a call for New Hampshire to send their delegates to reestablish eleven voting states. Apparently New Hampshire was having trouble gathering the funds to send their delegation. In a highly unusual situation, John Langdon personally paid his way and that of Nicholas Gilman.[19] They showed up at the Convention on 23 July 1787.
The commissioning act by the legislature of the “small state” of Delaware forbade any modification to the “each state shall have one vote” clause in the Articles of Confederation during the Constitutional Convention.[20] This was noted during reading the credentials on 25 May 1787.[21] George Read reminded the committee of this almost immediately on 30 May 1787 when representation debates started.[22] One state; one vote has always been the rule for state conventions. it is a republican, not a democratic principle, and the second phase of Article V renders any other rule as frivolous because ultimately every state gets one vote during ratification.
It is very informative to read the rules from the Constitutional Convention.[23] These are the details of how the convention would do daily business and do not include the three foundational rules above. The first rule adopted from the “rules committee” would seem to belong in the set of foundational rules above – quorum was determined to be a simple majority, 7 of the 13 states. Only 11 states were ever present, but the committee chose to assign quorum as if all 13 were present.
Large States; Small States
Anyone who has taken a civics class knows that one of the biggest arguments at the Constitutional Convention was representation. The disagreement was between large and small states. The large states were Pennsylvania, Massachusetts, and Virginia. New York aligned with the small states. What defined large or small? The size was determined by population and the issue was essentially distribution of population rather than wealth. But this was not the origin of the issue. The states had actually confronted this issue during their first conventions and agree to the “each state gets one vote” in all state conventions.[24]
Today we think about red and blue states, but that is the complex adaptability of the political parties masking the essential differences in perspectives brought about by population density. Whereas, the original Democratic party of Andrew Jackson’s aligned itself with rural areas, today’s party is tightly aligned with urban population densities. Likewise, the Republican party has flipped from its original northern industrial alignment, it appeals more to those in less dense populations. Why do we care? If we reconsider our sub-setting of the states into small v large instead of red v blue, we can look directly at the census to see that an even larger imbalance in population exist today than the one that drove the original states to adopt the rule that “each state gets one vote”. Without it, small states have no say. Whereas 3 of the original 13 had about 40% of the population[25], today the top 6 of 50 comprise about 40% of the population.[26] With about four times as many states, only double the original three hosts 40% of the population. It should be clear that a super majority of the states would be giving up their voices if they allowed any rule other than “each state gets one vote”.
How to ensure an orderly Article V Convention
If the three foundational rules outlined above are followed, an Article V Convention will follow orderly republican principles. Is there anything to ensure all three are followed? They are not directly written into Article V. They should be, but they’re just not there.
The first two will be settled before the convention convenes. State funding of delegates will limit the size of the delegation that each state wishes to fund. The real key is that “each state gets one vote” is absolutely imperative. Without it, the “small states” (44 of the 50) will be overwhelmed by the “large states”. However, the small states have an iron-clad way to protect themselves. All they have to do is to follow the lead of little Delaware in 1787. If every small state puts a provision that requires that “each state gets one vote” into their commissions to their delegates, the worst outcome possible is that the convention would be canceled when quorum cannot be met. Likewise, an additional provision that guaranteed a protective quorum would ensure the republican principle of “each state gets one vote” or no convention.
Consider an example. 44 of the 50 states put the following provisions into their commissioning letters:
- If any voting rule is accepted in convention other than “each state gets one vote”, we withdraw our delegation.
- The convention cannot meet without a quorum of at least 26 states. We will withdraw our delegation if any lower quorum is established.
If the large states try to inflict proportional voting, there is no way that a quorum of 26 states can occur because 44 states will leave the convention. Even as few as 25 states following through on these provisions will defeat a big state takeover. This is a safeguard only and is the worst-case scenario. In all likelihood, a motion for anything other than “each state gets one vote” would be soundly defeated under this circumstance. What if the worst case happened? Once it is established that the small states can protect themselves this way, they should realize their power in a subsequent convention.
Once the quorum rule of seven was adopted by the Philadelphia Convention, the total of delegates was bound from a minimum of 14 to a maximum of 91 (7 x 13). Today the range would be from a minimum of 52 to a maximum of 350. Clearly today’s numbers present some challenges to debate beyond those in 1787. The 1787 rules only allowed any delegate to speak twice on a subject – and only a second time after everyone else had a shot. Clearly every subject cannot be addressed twice by 350 delegates. The rules will need to be different to enable reasonable debate with such a large body. One possibility is to apply the speaking rule from 1787 such that it applies to a state delegation instead of an individual. It would then be up to the delegation as to which individual expressed their point(s).
As we can see above, it makes no sense for a state to send a large delegation. Since it only gets one vote, additional delegates just run up the cost. A state delegation should come prepared for the business to be pursued. Intramural discussions should take place within a state to determine its best interests and those of the nation at large before a convention. The founders required two to keep one individual for speaking for a whole state, but allowed for up to seven. Travel was more difficult in those days, and family illness called various delegates away. With much easier travel today and better healthcare, a smaller delegation of three or four may be more reasonable. This would reduce cost for the state, and it would lower the maximum size of a convention.
Summary
The founding generation didn’t just establish a new nation. In the process, they first rejected subjugation. They rejected being subjects of a king. The Constitution specifically forbids titles and nobility in favor of the common nincompoop. Today there is a number of our fellow citizens who picture themselves above us “little people”. Unfortunately, a number of these folks have elements of power within the national government and are hell-bent on subjugating the rest of us to their will.
Even more unfortunately, another segment of our fellow citizens are even bigger nincompoops. They want to disarm you from the proper remedy to the threats imposed by the subjugators – Article V of the Constitution. The framers would be completely baffled by the silliness of their position. Consider the original words of resolution 13 of the original Virginia Plan, “that provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto”.[27] Going into the Convention, the framers clearly saw that the national government should be kept out of the loop in the amendment process. Hamilton is the only reason that the national government can propose amendments.[28]
The same protection of “each state gets one vote” that can be put into a state commissioning act can be used to protect any of the Bill of Rights. Think about it.
It would be unthinkable to the framers that we would fear more amendments from our fellow nincompoops in the states than from a national government gone rogue.
[1] Aristotle, Politics, Book 4, section 1291a.
[2] http://www.ourrepubliconline.com/Author/21
[3] http://www.5280.com/2013/07/dudley-browns-war/
[4] https://www.hoover.org/research/disenfranchisement-rural-america
[5] https://www.theblaze.com/news/2013/02/22/what-are-the-best-and-worst-states-for-second-amendment-fans
https://www.nraila.org/gun-laws/
[6] https://www.usconstitution.net/xconst_A5.html
[7] https://www.jbs.org/6not5
http://eagleforum.org/column/2008/dec08/08-12-19.html
[8] http://eagleforum.org/column/2008/dec08/08-12-19.html
[9] https://www.npr.org/2014/03/26/294383506/say-goodbye-to-the-taxpayer-funded-political-convention
[10] http://avalon.law.yale.edu/18th_century/artconf.asp#art5
[11] https://csac.history.wisc.edu/documentary-resources/confederation-period/convention-delegates/
[12] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=13&ved=0ahUKEwj3zOOmycbYAhVn9IMKHVhNAqU4ChAWCDIwAg&url=http%3A%2F%2Fnsla.nv.gov%2FArchives%2FArchival_Records%2FExecutive_Branch_Agencies%2FColorado_River_Commission%2F&usg=AOvVaw21MRIfQHuqLnEE7H7t2UAh
[13] https://en.wikipedia.org/wiki/Republican_National_Convention
https://en.wikipedia.org/wiki/2016_Democratic_National_Convention
[14] http://avalon.law.yale.edu/18th_century/artconf.asp#art5
[15] Ibid.
[16] “The First Continental Congress.” Bicameralism: John Adams, Notes on Debates in Congress. Accessed
March 21, 2019. http://press-pubs.uchicago.edu/founders/documents/v1ch12s3.html.
[17] https://histcsac.wiscweb.wisc.edu/wp-content/uploads/sites/281/2017/07/delegate_inst4.pdf
[18] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=13&ved=0ahUKEwj3zOOmycbYAhVn9IMKHVhNAqU4ChAWCDIwAg&url=http%3A%2F%2Fnsla.nv.gov%2FArchives%2FArchival_Records%2FExecutive_Branch_Agencies%2FColorado_River_Commission%2F&usg=AOvVaw21MRIfQHuqLnEE7H7t2UAh
[19] http://law2.umkc.edu/faculty/projects/ftrials/conlaw/marrynewhamp.html
[20] https://histcsac.wiscweb.wisc.edu/wp-content/uploads/sites/281/2017/07/delegate_inst6.pdf
[21] http://avalon.law.yale.edu/18th_century/debates_514.asp
[22] http://avalon.law.yale.edu/18th_century/debates_530.asp
[23] http://avalon.law.yale.edu/18th_century/debates_522.asp
[24] “The First Continental Congress.” Bicameralism: John Adams, Notes on Debates in Congress. Accessed
March 21, 2019. http://press-pubs.uchicago.edu/founders/documents/v1ch12s3.html.
[25] https://en.wikipedia.org/wiki/1790_United_States_Census
[26] https://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_population
[27] http://avalon.law.yale.edu/18th_century/debates_529.asp
[28] http://avalon.law.yale.edu/18th_century/debates_910.asp
