Willful Misrepresentation: Convention Opponents’ Persistent Promotion of Clear Falsehoods

One mark of authors who oppose all efforts to use Article V’s application and convention process is their continued repetition of claims that are demonstrably false. Those statements—whether made by those on the Left or Right—are often remarkably similar, reflecting their common origin in a 1960s-70s propaganda campaign.

Before 2010, they might have had some excuse. (Although some of their claims were debunked as long ago as 1988 in Russell Caplan’s 1988 Oxford University Press book, Constitutional Brinksmanship.) But accurate information is now extensive and widely available—at this website and many other places. So there no longer is any excuse.

Consider first an example from the far Left. This one comes from a January 18, 2017 article by Michael Leachman and David Super, which (as of this writing, anyway) is posted on the website of the Center for Budget and Policy Priorities:

The only constitutional convention in U.S. history, in 1787, went far beyond its mandate.  Charged with amending the Articles of Confederation to promote trade among the states, the convention instead wrote an entirely new governing document.

That short statement contains four clear historical errors. First, the 1787 convention did not go beyond its mandate. The belief that it did arises from presuming that a February 21, 1787 Confederation Congress resolution was the convention’s “call” (mandate). But the fact that it was not a call is apparent from the wording of the resolution. Actually, the convention was called on December 1, 1786 by Virginia, and its mandate was set (as Madison pointed out in Federalist No. 40) by the commissions issued by the participating states. Only two states limited their commissions to amending the Articles, and most commissioners from those states did not sign the Constitution.

Second, the 1787 convention was not called to “promote trade among the states.” The writers probably have the 1787 convention confused with the meeting the prior year in Annapolis, which was convened to propose amendments and measures pertaining to trade.

The third error is the claim that there has been only one constitutional convention in U.S. history. In fact, there have been three. The first was the Albany Congress of 1754, which proposed a plan for union among the colonies. The second was the 1787 conclave. The third was the 1861 convention in Montgomery, Alabama, which drafted a new constitution for the Confederate States of America. (The cause was a bad one, but the Montgomery gathering was clearly a constitutional convention.)

The fourth error lies in representing an Article V convention as a “constitutional convention.” It is not: It is a task force limited to proposing amendments to “this Constitution”—i.e., amendments to the present constitution, not a new one. Pointedly, the Constitution itself does not call it a constitutional convention, but a “convention for proposing amendments.”

Leachman and Super might respond by insisting that they choose to define any gathering for proposing amendments as “constitutional.” That definition is more misleading than accurate—but, okay, let’s accept it for a moment. If we do so, they are still wrong, because by their definition we have held not one constitutional convention but seven!

American colonies and states met in conventions designed to propose, or that did propose, amendments to the existing constitutional regime (1) in Hartford, Connecticut in 1780, (2) in Annapolis, Maryland in 1786, (3) again in Hartford in 1814, and (4) in Washington, D.C. in 1861. Add to those four the genuine constitutional conventions of 1754, 1787, and 1861 (Montgomery), and the total comes to seven.

That’s seven, not one.

Now let’s address another anti-convention screed, this one from the Right. The following passage comes from an article written by Steve Byas in the February 21, 2019 New American:

[T]he last time we had a convention of states — the 1787 Constitutional Convention, which produced our present Constitution — the delegates were likewise restricted to the “sole purpose of revising the Articles of Confederation,” which was the constitution the U.S. had at that time. Clearly, they exceeded their mandate and wrote an entirely new document. Additionally, any amendments to the Articles of Confederation required not three-fourths of the states to ratify, as is our present ratification method, but rather a unanimous consent of all the states. That requirement, clearly, was lowered to three-fourths in order to get the new Constitution ratified.

Here you can see a repetition of the 1787 “runaway” assertion—again in defiance of the historical record. Note how closely it parallels the language from the left-wing article.

This passage also contains another clear historical error: 1787 was FAR from the last time we held a convention of states. Regional conventions of states met in 1814, 1850, 1861, 1889, 1922, and 1946-49. (At least one additional 20th century convention is probable but not yet verified.) National (general) conventions of states gathered in Washington, D.C. in 1861 and in Phoenix, Arizona in 2017.

Finally, the claim that the 1787 convention changed the ratification method is based on legal and historical ignorance—aggravated, it appears, by an unwillingness to read anything new. It assumes the 1787 convention was called pursuant to the Articles of Confederation. Actually, the 1787 convention was called under the states’ reserved powers, and therefore outside the Articles. It was not subject to the Articles, but enjoyed, as the Founders would say, more “plenipotentiary” power. Because it proposed a new form of government, it adopted a ratification method designed to approximate approval by a majority of the American people.

By contrast, a convention for proposing amendments is held under, as Madison said, “the forms of the Constitution,” and therefore subject to the rules of the Constitution, including the Constitution’s prescribed mode of ratification. Numerous court decisions have reinforced this conclusion.

People may differ on whether we need a convention now. But one cannot honestly publicize claims that even minimal checking would show to be inaccurate. That’s a kind of fraud.