Point by point response to one of those anti-convention op-eds

by Rob Natelson

(Professor Natelson taught constitutional law at the University of Montana, and now directs the Article V Information Center.)

Liberal opponents of a convention for proposing amendments seem to have a campaign of writing op-eds for leading newspapers. Most of the articles cover the same talking points, and some employ nearly identical language.

Some of the authors are academics whose credentials increase their persuasiveness. But they all have two attributes in common: None has ever published independent research on Article V, and none displays any knowledge of recent scholarship on the subject.

I believe that Common Cause and other liberal groups are feeding these authors erroneous “talking points” without revealing that they have been debunked. Essentially, the talking points repeat mythology disseminated in the 1960s and 1970s, but discredited by subsequent scholarship.

A column typical of the kind appeared in the Kansas City Star on September 10, 2018. It was composed by Allen Rostron, a law professor at the University of Missouri – Kansas City School of Law. Regretfully, Professor Rostron seems as unfamiliar with the law and history of Article V as I was for most of my own career as a law professor.

Here are the author’s key claims, with corrections:

Claim: “Today, some people feel it’s time for America to have another constitutional convention. The idea finds support from some on the left and right sides of the political spectrum.”

Correction: Very few people favor another constitutional convention. What they favor is a convention for proposing amendments—the name given to the gathering by the Constitution itself. Confusion between an amendments convention and a constitutional convention did not arise until the 20th century, when opponents took advantage of that confusion to frighten people away from an amendments convention.

Claim: “But everyone should think carefully about the tremendous risks and uncertainties that would present.”

Correction: Actually, there are relatively few uncertainties and virtually no risks. The convention has only one power, and it is a power that Congress can exercise any day of the week: to propose one or more amendments to the states for ratification. In fact, the convention’s proposal power is less than that of Congress. Unlike Congress, the convention dissolves once it has issued its proposal and, as explained below, the convention is hemmed in by a welter of legal and practical restrictions.

Claim: “The framers of the Constitution . . . provided two ways to amend it. Under the first method, a proposed amendment must be passed by two-thirds of each house of Congress, and then ratified by three-fourths of the states. All 27 of the Constitution’s amendments have been created through this process.”

Correction: Actually, there are four methods, and two have been used. The four are (1) congressional proposal and ratification by state legislatures, (2) congressional proposal and ratification by state conventions, (3) federal convention proposal and ratification by state legislatures, and (4) federal convention proposal and ratification by state conventions.

Claim: “The Constitution does not specify how the delegates for such a convention would be chosen, how many delegates each state would have, what rules would apply at the convention or whether there would be any limits on what amendments the convention could consider.”

Correction: Overwhelming and uncontradicted Founding-Era evidence tells us that a convention for proposing convention is a “convention of the states.” Moreover, the U.S. Supreme court has confirmed this characterization.

Conventions of states were (and are) negotiations among state delegations based on the rule of sovereign equality. Delegates (more properly, “commissioners”) are chosen as directed by their state legislatures. Such conventions almost always are limited in their authority. Their protocols were well established in 1787, in 1831, and today.

Our experience with conventions of states has been vast: There were about 20 conventions of colonies before Independence, eleven conventions of states between 1776 and 1787, and at least nine since then—seven regional, and two national (“general”). The most recent was a general convention of states held in Phoenix, Arizona in 2017.

 The Founders fully understood what an interstate convention was and how it worked—just as they understood the protocols and practices undergirding such other constitutional terms as “Cases and Controversies”, “Habeas Corpus”, and “Trial . . . by Jury.” The courts consider such understandings to be part of the Constitution. Since the Founding, the courts have affirmed repeatedly that historical practice governs procedures under Article V.

Claim: “A convention that was called to address a specific issue, such as budget deficits, might propose changes to . . . anything else in the Constitution. There is no rule or precedent saying what the proper scope of the convention’s work would be.”

Correction: As noted above, and amendments convention is a convention of the states, and conventions of the states are almost invariably been limited to pre-set topics. Almost invariably also, they have respected those limits (including, contrary to popular legend, the 1787 convention). Moreover, commissioners are bound by instructions from the states that sent them and by other restrictions set forth below.

Assertion: “While these resolutions attempt to specify limits on what topics the proposed convention could address, no one can be sure if those limits would be enforceable. Like the rest of us, Missouri legislators have no more than hopes and guesses about what the outcome of such a convention would be.”

Correction: “Hopes and guesses” don’t begin to explain the limits on an amendments convention. Besides the force of public opinion, the convention is limited by (1) the scope of state legislative applications, (2) the scope of the congressional call (which encapsulates the applications), (3) state legislative instructions to commissioners, (4) state legislatures’ power to recall commissioners, (5) the power of Congress to refuse to set a mode of ratification for recommendations outside the convention’s power, (6) the ability of the states—which, remember, set the boundaries for the convention—to refuse to ratify, and (7) judicial review at every stage.

Compare that with the absence of restraint on our runaway Congress!

Claim: “Common Cause president Karen Hobert Flynn said calling for a constitutional convention is like opening Pandora’s box . . .Or as conservative activist Phyllis Schlafly put it several decades ago, having a convention “means playing Russian roulette with our Constitution.”

Correction: With all due respect, neither Ms. Flynn or Mrs. Schlafly have ever displayed any knowledge of the subject. Until her passing, Mrs. Schlafly remained utterly ignorant of the nature of an amendments convention. (She repeatedly compared it to a the Democratic and Republican national party conventions.) In her defense, I should add that most of her comments were made before modern scholars debunked the “runaway” myth. Ms. Flynn does not have that excuse.

Claim: “The Constitution certainly isn’t perfect, but it’s served the country reasonably well for more than two centuries. This is why our representatives in the Missouri legislature should rescind all applications calling for a constitutional convention.”

Comment: Although the Constitution as written has served us well, we have been ill-served by de facto changes and misinterpretations from Congress, the president, and the courts. The Founders’ most important remedy for such problems was the Article V amendment process—as they demonstrated by passing the 11th amendment to reverse an overreaching Supreme Court case.

If any of the Founders were to appear today and learned that we had failed to use the convention process to correct our dysfunctional federal government, they would be astonished and profoundly disappointed.

Two last points:

First, Prof. Rostron’s article does not repeat the common assertion that the courts don’t adjudicate Article V cases, or that they leave all key decisions to Congress. This was wise on his part: There have been over 40 reported Article V cases. Second, his article does not include the common claim that the Constitutional Convention of 1787 is the “only precedent” because it is the “only constitutional convention every held” and that it exceeded its power.

As noted above, there have been approximately 40 interstate convention precedents, as well as many precedents of other kinds. Properly speaking, two of those gatherings, not one, were constitutional conventions: the 1787 conclave and the 1861 southern convention in Montgomery, Alabama. But if you adopt the opponents’ loose definition of “constitutional convention,” they are still wrong. They employ that term to include assemblies convened to propose, or that do propose, changes in the basic law. But then the the correct number is not one but six: Albany in 1754, Hartford in 1780, Annapolis in 1786, Hartford in 1814, and Montgomery and Washington, D.C. in 1861. All remained with the scope of their calls.