Is Article V Constitutional Suicide?
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, also 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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate. – Article V of the U.S. Constitution
Did the Founding Fathers sow the seeds of our own destruction into the U.S. Constitution? Those who oppose an Article V Convention of the States seem to believe so. They argue that opening the door to such an action would result in the catastrophe of losing our God-given Bill of Rights or in the overhaul and rewriting of the entire document. But is this indeed the case?
The Constitution is far from being a “living and breathing document” as those who wish to make the words on the paper mean whatever they want them to mean at any given time euphemistically describe it. The Founders understood the necessity of amending the Constitution in future generations, but they wanted to make it extremely difficult to do so given the emotionality and fickleness of human beings in general. This is illustrated by the folly of the 18th Amendment, banning alcohol, which was then rectified within 15 years by the repealing 21st Amendment.
Since its ratification on March 4, 1789, twenty-seven Amendments have been added to our “Supreme Law of the Land.” Each of these Amendments followed the two steps laid out in the first part of Article V: they were adopted by two-thirds of Congress and then ratified by three fourths of the states. Literally hundreds of potential Amendments are actually proposed by the House and Senate during every two year term of Congress, though they nearly all die in committee. However, Article V also declares that the individual State Legislatures have the right to propose Amendments as well, though until now none of the more than 700 state Amendments which have been proposed have successfully navigated this route. The reason for this is that once the buildup begins in the States to adopt a certain Amendment, Congress likes to jump in front of the parade and take over the Amendment themselves. The Seventeenth, Twenty-first, Twenty-second, and Twenty-fifth Amendments were all appropriated by Congress in this way.
Because of the great difficulty in amending our original governing document, The Articles of Confederation which required unanimous consent among the states, the Founders were especially keen to provide for this problem in the new Constitution. The original arguments were in favor of only the national government having the power to amend the Constitution. However, Founding Father George Mason, author of Article V insisted the people through the state legislatures also share in this power by wisely arguing that it “would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.” Mason added that, “no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive.” In response to these concerns, the Convention unanimously voted to add the language allowing states to apply to Congress for a convention to propose amendments to the Constitution.“
This then, brings us to the current debate: Should we follow Article V by calling for a State’s Convention to propose Amendments to the Constitution? There is a certain understandable trepidation because, in a way, it is uncharted territory. Those in favor of such a course argue that we do have a navigable map in the Constitution and in the Founder’s notes on the Convention itself. Those who are wary of such a course argue that the text of the Article V map might as well read, “Here be dragons” for all the dangers and certain doom it entails.
This is an issue I tentatively bring up with folks just to see where they stand – or it comes up while discussing other topics and issues such as Mark Levin, a proponent of an Article V States Convention as he lays out in his book The Liberty Amendments. Once I learn that someone is clearly against a State’s Convention I find it pointless to debate them. They have the same reaction a true believer in global warming/climate change has when you try to ask them why it still gets so cold in winter. Their eyes glaze over and they go on a nonstop emotional tirade based on two false premises. Once someone has a strong emotional attachment to a negative, it is impossible to dislodge them. Their mind is made up and they will not even honestly consider any other information. I will say that like Mark Levin, I, too, was at first opposed to a States Convention. However, the more research I have done, the more convinced I have become of its urgent necessity. My reasons for this is that the arguments I have heard against it are based on a 1) a huge false premise, 2) a self-nullifying statement, and 3) usually an ulterior motive.
The argument against a State’s Convention is based primarily on a huge false premise: that the entire Constitution would fall apart if we were to do so. It is argued that the entire Constitution would be open to being rewritten or entire Amendments (primarily the 2nd) would be wiped out, as if Presidential Executive Orders and Supreme Court decisions are not already wiping out vast swathes of our Constitution. This is based on the argument that the first Constitutional Convention itself was a “runaway Convention.” Any study of actual history, rather than just the repeated statements of those who are against such a Convention, the Founder’s actual notes on the original convention, and the origination of the term “runaway Convention” (hint: it came from Progressives in the 1960’s in an attempt to scare Conservatives away from taking such actions to curb our “runaway” Congress and judicial system) shows that this is not the case. A State’s Convention to propose Amendments would be no different than Congress proposing Amendments. It is just a different route – an escape hatch put in place by the Founders to bypass a Congress that will not follow the Constitution or propose Amendments limiting its own power. The original delegates to the Constitutional Convention were not lawless and it is insulting to the sacred honor they pledged to argue that they were. They were under strict orders from their respective states and the states themselves would have recalled “runway” delegates and certainly never have ratified a “runaway” document. The “runaway Convention” argument is just as ridiculous and baseless as the “living and breathing Constitution” – and both arguments originated from the same source. How do Conservatives so strongly reject the one but so readily buy into the other? Fear of dragons is indeed a powerful weapon.
After arguing that the first Constitutional Convention was an illegal “runaway” and thus our Constitution, country, and “Supreme Law of the Land” is, in effect, lawless, these same folks will then nullify their own argument by either:
a) Stating, “What we need to do is just get back to the Constitution by electing folks who will follow it” – but not “get back to the Constitution” by holding an Article V Convention as the Constitution actually advocates;
b) Arguing only in favor of the 10th Amendment – which only utilizes part of the powers specifically reserved for the states;
c) Arguing “they (our government officials) don’t even follow the Constitution now, so why would they follow any new Amendments?” I find this the most self-defeating and illogical of all the arguments I hear. These folks are supposedly gung-ho about fighting for the Constitution, but once they reach this logic impasse, they just throw their hands up in surrender.
This last argument of “they don’t even follow the Constitution now” is a cover for what I fear to be an ulterior motive by many of the opponents of an Article V Convention. That is, they don’t really want to legislatively save the country; they want a revolution. This realization occurred to me about a year ago when I attended a large political gathering of a group that is adamantly opposed to a State’s Convention. Every conversation on this topic ended with basically the same statement: “Let the government just collapse. If they want war, bring it on.” To cheer on destruction when there are still other viable options available to us would prove to be just as much a folly and disaster as the South brought upon itself in the Civil War. Article V is the “Break Glass in Case of Emergency” clause and we are in the midst of that emergency.