Mainstream media outlets often have a vested interest in favor of the status quo. They have a long history of publishing false and misleading material about the Constitution’s Article V amendment process (pdf)—and then refusing to print corrections or allow any response. This keeps citizens ignorant of their constitutional rights under Article V, or at least afraid to exercise them.
The Hill, the prominent Washington, D.C. blog, is the latest example. On December 8, 2021 it published a “news” story full of misinformation. The only “expert” it quoted was a D.C. law professor and paid opponent who has never published any scholarly research on the Constitution’s amendment process. The story was essentially an anti-Article V hit piece.
Professor Rob Natelson, the moderator of this website, is America’s most-published Article V scholar and the author of the only legal treatise on the subject. He has been writing opinion articles for over 50 years and has published several in The Hill. Accordingly, he asked The Hill for permission to respond. Permission was granted.
Professor Natelson then submitted this article, which—unlike the misleading “news” story—included many Internet links supporting his statements. Yet for reasons it refused to disclose, The Hill simply failed to publish it. Three polite requests for clarification went unanswered.
Among reputable media outlets, this is not considered acceptable behavior. It is also unusual for The Hill. We are forced to conclude that the only reason for The Hill’s conduct—both the initial “hit piece” and the refusal to correct it—was to suppress accurate information about the Article V amendment procedure, thereby protecting the D.C. establishment.
Following is Professor Natelson’s column:
The Truth About Amendments Conventions
by Rob Natelson
Reid Wilson’s news story on the movement for an amendments convention contained multiple errors—beginning with its headline.
First some background: During the Founding Era, Jean-Louis DeLolme’s influential book The English Constitution pointed to the need for a method by which the people could intervene when government goes awry and normal checks and balances don’t work. This would serve as a constitutional alternative to nullification or revolution.
The Constitution’s framers inserted such a method in Article V, which prescribes the procedure for constitutional amendment. Article V allows the people, acting through their state legislatures, to bypass Congress and submit corrective amendments to the states for ratification.
Specifically, if two thirds of the state legislatures (now 34) pass resolutions (“applications”) for amendments on a particular topic, Congress must invite (“call”) state representatives to a formal meeting to decide whether to propose such amendments. The Constitution denominates this interstate meeting a “Convention for proposing Amendments.” No proposed amendments are effective unless ratified by three-fourths of the states (38).
We know from massive and uncontradicted evidence (pdf)—including a Supreme Court case (pdf)—that a convention for proposing amendments is a “convention of the states.” The “convention of states” device is well-understood. Such gatherings have met at least 40 times, most recently in 2017. We know also from history and case law that the convention derives its power from the Constitution, must follow the Constitution’s rules, is limited to proposing amendments to the existing Constitution, and is restricted to the topics for which it is called.
Because of widespread dissatisfaction with the federal government’s performance, several organizations—left, right, and center—are campaigning to trigger a convention. However, because the topic usually is overlooked in constitutional law and civics courses, few Americans know much about it. Opponents of reform have taken advantage of that ignorance to propagate disinformation about the procedure. This disinformation is designed to frighten people away from the process and thereby protect the status quo.
As refined during the 1970s and deployed ever since, the disinformation generally centers on two contradictory, but equally false, claims: (1) A convention for proposing amendments is a “constitutional convention” that can do anything it wants and (2) the very Congress the convention was called to correct can write its rules and otherwise control it.
Wilson’s story uncritically repeats these claims, apparently because he failed to consult a qualified Article V expert—relying instead on two paid opponents, neither of whom has published any scholarship on the subject. Thus:
- The story repeatedly uses the misnomer “constitutional convention” instead of the Constitution’s actual name for the gathering: “convention for proposing amendments.”
- The story claims that once 34 states have applied, “Congress gets to set the initial rules.” In fact, as Justice John Paul Stephens pointed out in a 1975 court decision (pdf), within the scope of their authority, assemblies meeting under Article V set their own rules. This particularly true here, because the framers established the amendments convention as a way to bypass.
- The story states that “Article V leaves much open to interpretation: Nothing . . . describes the process by which a convention would be run or the delegates who would meet and vote on potential amendments.” Actually, centuries of history and case law fill out the wording of Article V, just as they fill out the meaning of constitutional phrases like “Trial . . . by Jury.” As noted above, the gathering is a “convention of the states,” an institution—like the common law jury—whose basic protocols are thoroughly understood.
- The story implies that applications on different topics can be counted toward the two-thirds threshold and that the convention can consider any topic. Both the uniform history of conventions of states and Article V case law refute those claims.
- The story says that the Constitution’s “requirement that any new amendments be ratified by three-quarters of states was a requirement the last constitutional convention ignored.” The reporter’s chosen “expert” adds that “There’s no guarantee that [the convention] will follow the ratification procedures. The only precedent we do have, they didn’t follow the ratification procedures.”
That is not only a mistake, but a bizarre one. The “last constitutional convention”—presumably referring to that held in 1787—didn’t follow the three-quarters rule because that rule didn’t exist yet! Nor did the states meet under the rules of the Articles of Confederation, as sometimes claimed. The 1787 convention was commissioned directly by the states to revise the entire political system and to propose any changes it deemed “exigent” (pdf).
In sum: Article V law and history tells us that a convention for proposing amendments (unlike a constitutional convention) derives its powers from the Constitution and is bound by the Constitution’s rules. It can only propose amendments (something Congress can do at any time), not re-write the Constitution. The convention consists of delegations sent by the state legislatures, operating in conditions of sovereign equality. The convention cannot exceed its assigned scope. It cannot change the ratification procedure. And any attempt to do so would be ignored by Congress, by the states themselves, and by the courts.
Because other methods have failed to correct federal government dysfunction, the convention procedure offers the most promising way to do so. Apologists for the status quo don’t want you to know that. But it’s true.