(In light of the recent push by the Convention of States to attack Republican legislators and continue to push for passage of a resolution in the legislature for an Article V. convention, I found this guest article interesting enough to share with you for your consideration. -pp)
Bluffing Their Way to an Art. V Convention
Part 1: Validation Schemes
By Judi Caler.
Sound the alarm!! We are closer than ever before in our nation’s history to Congress’s calling a convention under Article V of the US Constitution, where we would likely lose our Constitution. And it’s because of yet another deception from the con-con lobby.
Article V says that “The Congress…on the Application of the Legislatures of two thirds of the several States [now 34], shall call a Convention for proposing Amendments [to the US Constitution]…”
There have been approximately 450 applications passed by 49 State Legislatures since 1788, the year our Constitution was ratified. So, whether or not a constitutional convention has been triggered depends upon the criteria Congress uses to determine which of the 450 applications are valid. Only then can Congress count the States that submitted those applications to find out whether or not the 34-state threshold was reached.
On July 19, 2022, US Rep. Jodey Arrington (R-TX), introduced H.Con.Res.101 and H.R.8419. The former is a purported “call” for a convention.[1] And the latter directs the Archivist of the United States to “authenticate, count, and publish” all non-rescinded applications and notify Congress of its duty to call a convention, if those applications were passed by at least 34 State Legislatures.
Of the 450 applications passed since 1788, about 230 have since been rescinded[2]—leaving about 220 non-rescinded applications from 39 States. So, if H.R.8419 becomes law, Congress will all but guarantee that the first constitutional convention since 1787 will be triggered—simply by establishing “all non-rescinded applications” as the only criterion by which Congress would authenticate applications!
H.R.8419—A Validation Scheme Too Big to Fail
Although counting states from the set of “non-rescinded applications” seems reasonable on its surface, it’s a trick. Every application passed since the 18th century that states hadn’t bothered to rescind would be considered valid under H.R.8419 (or an updated 2023 bill #). And almost 80% percent of those “valid” applications were passed before the 21st Century.
Rep. Arrington would combine all relatively recent applications with applications passed by at least 24 State Legislatures asking Congress to call a convention to propose amendments on obsolete topics, including directly electing US Senators (resolved by the 17th Amendment ratified in 1913); averting the Civil War (ended in 1865); prohibiting polygamy (now outlawed in all 50 states), repealing prohibition (resolved by the 21st Amendment ratified in 1933), prohibiting slavery (resolved by the 13th Amendment ratified in 1865), averting the Nullification Crisis of 1832–33, and adding a Bill of Rights to our Constitution (ratified in 1791).
In fact, we hit the 2/3-state threshold for Congress’s calling a convention per H.R.8419 in…(drumroll)… 1907, and we’ve NEVER dropped below the threshold in the 115 years since! The number of states with non-rescinded applications gradually grew from 34 states in 1908 to 48 & 49 States during the 3 decades between 1970 and 2000; and stands at 39 states today due to rescissions. That’s more than enough States to trigger a convention. (See graph).
Raise your hand if you think the Framers envisioned giving the states centuries in which to reach the 34-state threshold—so that by the time Congress called a convention, the American People would no longer remember or care about the issues that triggered the call!
Common Sense Validations
There are common sense ways for Congress to validate applications that would yield markedly different results than H.R.8419. In addition to considering all rescinded applications invalid, Congress could add the following criteria:
Validation by Obsolescence. Common sense dictates that if the purpose for calling the convention has been resolved (i.e. the Civil War, etc.), the applications should automatically expire.
Validation by Age. If a crisis could be remedied by altering or overhauling our founding document, then 34 States should be able to pass applications within, say, a five-year timeframe.[3] Consider that 46 States enacted COVID-19 legislation within just 10 months in 2020; and all 50 States did so within the 2021 calendar year.[4]
Validation by Type (limited or unlimited). Yale law professor Charles L. Black Jr. (1915–2001) was one of the leading constitutional law scholars of the twentieth century. Black considered all applications asking Congress to call a convention limited by subject, null & void—and that would include most of the applications passed by State Legislatures in the last 45 years. Other scholars agree[5]:
“I believe that, in Article V, the words ‘a Convention for proposing Amendments’ mean ‘a convention for proposing such amendments as that convention decides to propose…’[thus] a State application for a convention limited to one or more proposals or subjects is not an application for the ‘Convention’ denoted by the words in Article V…
“…[I]f thirty-four States may put Congress under a certain obligation by, and only by, requesting X, and thirty-four States request Y instead, then no congressional obligation arises6. —Charles L. Black, “Amending the Constitution: A Letter to a Congressman”
Depending upon which criteria Congress chooses, there are currently valid applications submitted to Congress from NO states, 39 states, or somewhere in between! Change the criteria, and you’ll change the result.
The Convention Deception
Mark Meckler, President of “Convention of States (COS),” and the other special-interest lobbyists have been falsely assuring legislators for nearly a decade, that a “runaway convention” is next to impossible. That’s because, they say, only when Congress receives 34 identical or similar applications on the same subject or subjects can Congress call a convention; and, they say, that convention would be limited to the subject of the 34 applications.
But the proponents’ own Article V experts contradict their lobbyists! Attorney and Article V scholar John Cogswell, who admittedly bends over backwards to ensure Congress’s calling a convention, made the following points in a 2018 report to the American Constitution Foundation (ACF)7:
“Congress has a duty to call a convention for proposing amendments without any limitations on the agenda of the convention…” p. 2
“There is no such thing as a ‘limited’ constitutional convention because a convention by definition and practice is a free agency and may propose whatever it likes…” p. 18
“…a convention for amendments could easily amend the Constitution in its entirety and replace it with some other document…” p. 27
“…it is unanimously understood by all scholars that the rules of the convention are to be decided by the convention.” p. 28.
Proponents bury the “too-big-to-fail” validation scheme in one bland adjective—“non-rescinded”—in §106c(b) under §1(a) of H.R.8419 and in §1(a)(2)(A) of H.Con.Res.101. But the accompanying press release, including legislative summaries and comments by Rep. Arrington, pretend to promote a “Fiscal Responsibility Amendment” and “Article V Accountability.”
H.R.8419 & H.Con.Res.101 are in-your-face evidence that proponents are attempting to manipulate the 34-state count to trick Congress into calling a convention which is inherently illimitable. This is not surprising, coming from the same folks that misled State Legislatures into passing applications for a “limited” convention.
Coming soon: Part 2
Judi Caler is a citizen activist working to defend our Constitution from those who would risk it at an Article V constitutional convention. She serves as Article V Issues Director for Eagle Forum of California.
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I can provide further evidence of this betrayal of the trust of legislators and the people. In Utah this year, Rep. Ken Ivory introduced HJR 9 which demanded Congress call a convention because of a new theory Convention advocates dreamed up that Congress should have added up unrelated applications for a convention dating all the way back to 1789. This was supposedly to attain a “fiscal responsibility amendment.” Rep. Ivory had successfully lobbied his colleagues in 2015 to pass an application for a convention for a federal balanced budget amendment. At the time he reassured legislators that only state applications with same or similar wording for a convention would be added up by Congress to determine if a convention should be triggered. And that wording, he claimed, would limit the agenda of the convention. Sound familiar? Well, just 7 years later, these same people, including David Biddulph, who had lobbied states like South Dakota, after realizing their push to get 34 states to have similar applications passed was not getting closer to their goal, suddenly discovered that they needed to try and get Congress to just call a convention because they didn’t know how to count to 34, supposedly. But, if this new theory of how a convention should be triggered, how would the agenda of the convention be limited to one subject? BTW, Rep. Ivory is deeply involved with the Convention of States organization. Here is the legislation I referred to. https://le.utah.gov/~2022/bills/static/HJR009.html
Way to long
Anything done at a Article V convention has to THEN be ratified by 3/4 of the States, PER THE CONSTITUTION. C’mon, people! Why do you think every single opponent conveniently skips that part? I can’t believe every JBS and EF fellow is illiterate, so they must be willfully lying about this!
It wouldn’t matter if every single doomsday prediction about an Article V convention came true (which it wouldn’t, but for the sake of argument, let’s say it did), because whatever comes out of that convention then goes to the States for ratification. Let’s say the balanced budget convention gets hijacked and turns into the Second Amendment abolition convention. Do you honestly believe there aren’t 13 states that would refuse to ratify that? If you do, to borrow a phrase, you have rocks in your head.
A convention of States will be totally controlled by the Democrats and this will complete the loss of our country. Period. No need to go into the ignorance of the CoS people who strangely think they could control it.
Fun fact: Did you know 23 states currently have Republican trifectas (er, uh, “bifecta” in the case of the unicameral Nebraska legislature) of both legislative chambers and governorship. What that means, in case you’re forgetting the ratification component, even if something goes crazy and Democrats “totally control” the convention, just 13 states can block any amendment that comes out of it. Ten of those 23 states would have to suddenly side with said “total controllers” for the results of the convention to be enacted.
I dare you to show me in the Constitution where I’m wrong, because I can show you in the Constitution where I’m right.
Sorry, I meant 11*… 11 of those 23 GOP trifecta states would suddenly have to side with said “total controllers” for the results of the convention to be enacted. Ten flips would still block it.
I wouldn’t trust any of them to not totally screw the whole thing up. It may not be perfect but it’s a far cry from the total “charlie foxtrot” that the current members of congress have the potential to turn it into. And I am including both Republican and democrat.
While there is no crystal ball in front of me, I do have history as a guide, which is much better than speculation. I can give several examples of history which leave cause for significant concern. First, we have the 1787 convention. If you actually read the delegate instructions from each state and the resolution passed by the Congress at the time, the purpose of the convention was to revise the Articles of Confederation (our first constitution), not throw them out. Also, the Articles required and the instructions from states repeatedly referred to article 13 of the Art. of Confederation, which said any changes had to be approved by every state legislature and Congress. That’s not what happened. Read Article 7 of today’s constitution. Only 9 state ratifying conventions (not Congress, and not state legislatures) were considered sufficient to totally repeal and replace the Articles of Confederation. So, there is real historical precedent for changing ratification requirements.
Next, there is the history of ratification after Congress has proposed amendments. Congress has proposed 33 amendments over the last 233 years since 1789. We have 27 amendments that have been added to the US Constitution after “3/4 of the states” ratified. So, historically, amendments have stood about an 82% chance of ratification once proposed. So, on the surface it may seem like the 3/4 requirement is a difficult one to overcome. Historically it has not proven a formidable obstacle.
Then, for “conservatives” there is the history of 3 particular amendments, which would seem to raise concern. The 16th Amendment, which 42 states ratified (income tax amendment); the 17th amendment, which 41 states ratified (direct election of US Senators); and the 18th Amendment, which 46 states ratified (prohibition of alcohol). From a “conservative” perspective, we have three indisputable examples of how bad amendments can and have been added to the US Constitution, despite the 3/4ths of the states requirement. And it should be noted that quite a few of the states ratifying those amendments were dominated by Republicans, including South Dakota, which ratified the 16th and 17th UNANIMOUSLY, despite being overwhelmingly Republican in both chambers.
But let’s assume that the 3/4 of the states requirement holds firm in case of a convention. First, JBS and Eagle Forum folks don’t ignore that requirement in the Constitution, but it’s important to read the whole text of Article V of the US Constitution regarding the amendment process. The “3/4 of the states” requirement can take two forms, and which one it ends up being is explicitly left to Congress in Article V. Congress can decide ratification by 3/4 of the legislatures OR, 3/4 of the ratification conventions in each state (bodies outside the Legislature formed specially for ratification). So, even if you believe that a “trifecta” of Republicans at the state level is security against bad ideas being ratified that security has been proven to be illusory by history and can be explicitly bypassed (as in the case of the ratification of the 21st Amendment–repeal of prohibition) by Congress. I’ve found the Convention folks like to talk about “bypassing Congress” but for some reason they don’t mention bypassing the Legislature so often.
If you want to know the specific wording in the Constitution’s Article V Congress could explicitly bypass 13 state legislatures that might oppose a bad proposed amendment, I’ll take that “dare”
“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 Congress;”
As for outright abolishing the 2nd Amendment, that seems unlikely, but there are many ways to weaken it and get rid of the protections the Founders intended from it. And the fact is, many state legislatures have already passed such restrictions. For example, 19 states and DC have “red flag” laws. There are plenty of groups pushing for a “clarification” of the 2nd Amendment. And we have a President who has said several times that has said several times that back in 1791 a person could not own canon, and that no rights or amendments are absolute. The fact that such statements go largely unchallenged indicates a largescale ignorance of history and principles upon which our country was founded. Not a good time to be opening up the Constitution. Before we think ourselves wise enough to alter it, it would be much more wise to read and understand it.
Past history is not a measure of future earnings.
Very well put, however wishful thinking is a much less reliable indicator.
Mr. Oakes >>>> crickets
Or ten Democrat controlled could block everything also.
North Dakota had a Constitutional Convention in the early 70’s. Nothing passed and it was a bloodbath for the GOP in the next elelctions.
thanks for a real-world cautionary tale. we need more of these.
I’m pleased that people are coming to sanity on this topic. I trust George Washington (who changed the 1787 convention from an amending of the Articles of Confederation to the adoption of a new Constitution) over Rick Santorum and other paid hacks (who are sponsoring national chaos). The Constitution has served us well. Let us plod on.
Deep in debt, no accountability of bureaucrats,
Yup, sure working well.
That has nothing to do with the constitution and everything to do with unprincipled lawmakers and the msjority of voters not holing them accountable.
Why are we giving these “Foreign Actors” and agents any wiggle room. IF the people of South Dakota want to discuss publically any such concept(s) to propose in regards to amending the United States Constitution – American Citizens of South Dakota can in fact petition each other to hold a “State Convention” requesting the State Legislature to establish a statewide convention where the citizens can elect delegates to represent them by holding conventions here in South Dakota. Anything adopted by the State convention, would then go to the legislature to be codified, of which we can request the Governor to go out to each State to lobby on our behalf. That is the job of our Governor at that point, to create coalitions to conjoin with us to convince other Legislatures to join us in wanting to convince either:
A) the U.S Senate to debate, discuss, and adopt our conceptual plan(s) to amend the United States Constitution; or
B) to convince 34 or more State Legislatures to join us in applying for and instructing Congress to establish rules, codes, and procedures to hold a Constitution Convention of States on a specific date or dates.
Let me remind you, the two manners can occur simultaneously, but, its should start here in South Dakota as a true grass roots movement, NOT by foreign actors or lobbyists bringing their own private proposals to S.D Citizens. YOU should not jump over the people, to get to our legislature, the PEOPLE should petition their own legislature to hold a Statewide Convention, allowing the process of the legislature to put in motion the process of the Governor to do her job to lobby for, and on our behalf as a “REPUBLIC”
The JOB of the Governor is to Represent the State of South Dakota (a sovereign people) in foreign relations outside the State, meeting with the Board of Governors, let alone the President, in order to govern over the 50 States as ‘we’ do business with Foreign States, Territories, Countries.
Let’s be clear, we can change the constitution anytime it does NOT work in the best interests fo the States, let alone processes or new rules must be created in order to control or restrict the federal govt, or if and when the constitution no longer works, we can strike it down, let alone returning the power of managing the country back to the States under the Articles of Confederation of which is still active, still enforced, still codified within the U.S Senate itself.
At anytime, the States could get together to vote to repeal the U.S Constitution, to end the federal govt, let alone amending the document.
So it is very important, as to how the process ‘we’ decide to use to amend it, or to replace it. THE STATES are in charge, and the power of the State are the people within that state.
I oppose any such Foreign Actor, or group of actors coming into the State to convince us to support their movement, that has NOT already began deep within the State first.
The vast majority of this country agrees, we can give up the constitution if that means the one true president, Donald Trump, gets reinstated. He can appoint legislators if he sees any cheating like in AZ and other states, and we will have Jesus on our side.
You can get the orange one’s ‘digital trading cards’ too.