Many people agree that the Federal government is out of control and that it is incapable of reforming itself. The solution would be to call an Article V Convention so the States could bypass Congress to pass reformatory amendments. Problem is: half of us are afraid of convening one because we think there is too much risk of it going “runaway” – and us getting stuck with a document that more resembles the Soviet Constitution than the American one.
That’s poppycock, and I’m no pollyanna. A convention going “runaway” and us getting stuck with a “statist” constitution is impossible.
Bold words, huh? I just don’t understand, do I? Well, with your indulgence, I will endeavor to prove what I say. Got your seat belt fastened? Then let’s go!
The best way to show what I mean is to show that the conditions back then don’t exist today, making a similar “runaway” impossible, and that the current Constitution doesn’t even provide for a “runaway” and has many ways to stop one if anybody tried.
THE CONDITIONS BACK THEN
- First, the Constitutional Convention that replaced the Articles of Confederation with the Current Constitution was convened under the…ARTICLES OF CONFEDERATION, not the Constitution. Duh!
- Even then, the Constitutional Convention DIDN’T go “runaway”:
“There is zero precedent that any convention of the states has ever “runaway” from its assigned agenda. There have been 12 interstate conventions in the history of our country. All of them stayed within their stated agenda. Even the Constitutional Convention of 1787 was not convened to “amend” the Articles of Confederation, but to “revise” and “alter” the Articles to establish an effective national government. This was fully consistent with the Articles of Confederation because the Articles authorized alterations – a term that had revolutionary significance because it echoed the language of the Declaration of Independence. The broad purpose of the Constitutional Convention of 1787 was specifically mentioned in the call of Congress and in nearly all of the commissions for the delegates for each state. The 1787 convention did not runaway at all; it did what it was charged to do – like all interstate conventions preceding it.” (Quote from “10 facts to rebut the mythology of a runaway convention“, see “Bibliography”)
Therefore, it worked according to plan, and the delegates kept the convention within its bounds.
- This convention was called by the very biggest of the big fish in a very small pond. There were only 3 million inhabitants in the 13 former colonies in 1783. George Washington and the other founders were extremely rich by today’s standards, and were held in such high esteem by other Americans so as to be gods. The original Senate was afraid to exercise its ‘advice and consent’ Power with President Washington because no one thought that they knew enough to advise him of anything, they held him in such awe! There is no equivalent to them today, and the influence of even the super-wealthy today is diluted by hundreds of millions of people. None of them are held in esteem even remotely equivalent to the framers, who had risked their comfortable existences and became rebels against the most crushingly dominant government on the planet at the time. Everyone knew that, had they lost, they would have swung from the gallows, their riches would have been seized, and their families would have been destitute. That they had everything to lose and still fought for their principles made them objects of reverence.
- The Articles of Confederation was only 4 years old, and so did not have two centuries of legal and customary precedents interfering with adopting a new Constitution.
- We were recovering from a costly war. A new nation was formed and the times were unsettled.
- There was a general understanding that the Articles of Confederation was inadequate, yet the Constitutional Convention still almost didn’t go off, and had withering opposition.
- The Constitution was only completely ratified after a Bill of Rights was added.
- Even with Framer support, it was still an uphill slog to get three-fourths of the States to ratify it.
None of these conditions exist today, thus a modern convention couldn’t go runaway under them.
THE CONDITIONS NOW
There is no such thing as a Constitutional Convention under today’s Constitution. There IS the ability of the the States to propose amendments directly instead of working through Congress, a Power granted under Article V. The purpose was to let the States bypass Congress if the Federal government were to get out of control. If two-thirds of the States agree there is a need for amendment(s), they would gather together at a convention to hammer out what was to be covered and codify it into a standardized amendment proposal, which would then go back to all the States to be voted up or down by their State Legislatures or State Conventions (equivalent to a Legislature). If three-fourths of the States would vote to approve (an extremely high standard), then the amendment would be passed.
AN ARTICLE V CONVENTION WOULD BE FUNCTIONALLY THE SAME AS CONGRESS DEBATING AN AMENDMENT
State conventions are no bogeyman: they were the way States made agreements with each other in yesteryear. That’s why the Framers came up with this text for Article V of the US Constitution:
“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, 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.”
Somehow, in the minds of the people claiming Armageddon if the States were to do a Convention, this text would allow or even REQUIRE a Convention of the States to be a general one that couldn’t be limited in any way, leaving the door wide open to “runaway”.
This is preposterous. You really have to cross your eyes, fire up the crack pipe, take a hit of industrial-strength LSD, put on two tinfoil hats, and listen to your tooth fillings to come to an interpretation that even approaches this. Think about this, dear reader: the intention was that either Congress OR the States could propose amendments. Since Congress is already assembled, it wouldn’t need to call a convention to propose amendments, would it? No. Okay. Stick with me. The States, being spread over thousands of miles, weren’t assembled to propose amendments. How would they assemble? By calling a convention. The only other option would be to circulate a paper with the exact language of the amendment and then get it approved by ALL the State legislatures without ANY changes. What do you think the chances are that the legislatures would want to make NO changes? Did you think “zero”? I agree with you. So, given that people moved around by horse and buggy in those days, it would take forever to get something like that done. Thus, a logical person would quickly conclude that a central meeting point for the State delegations would be needed, a “Convention”.
Congress assembling and the States assembling are functionally the same, right? Whenever Congress has assembled to propose amendments in the past, it has always managed to limit the discussion to only the amendments previously proposed, and never gone “runaway” – so why would anyone think that the same thing done by the States would be any different?
BUT, you persist, some people have said that a State convention couldn’t be controlled by Congress. That’s correct–it would be controlled by those who proposed it– the States. Why should a States’ convention be controlled by Congress, anyway? After all, the States don’t try to assert control over amendments passing through Congress, so why would the converse be a concern?
It only makes sense that both the States and the Congress could limit the scope of amendments, because if there were always a threat of completely undoing the Constitution every time an amendment were proposed and the drastic change that would entail, then amendments would never be proposed! Why would the Framers have wasted ink putting Article V in the Constitution if they intended it to never be used? Every time Congress has proposed amendments, it has always limited itself. Why wouldn’t that apply to States? That should mean that Congress or the States can propose multiple amendments or single ones if either desires, but neither is REQUIRED to do so. Why would the States be required to do a general convention if Congress isn’t? No reason at all.
The next-to-last reason why a convention that decides, unplanned, to create a brand-new Constitution (i.e. “runaway”) would go nowhere is that the State delegations are subject to immediate discipline from their States telling them to “knock it it off”, and should they refuse, they would be recalled by their respective States, leaving no one to perform the “runaway”.
The final reason a Convention of the States would be safe from a “runaway” is that, even if somehow the convention managed to create a brand new Constitution without authorization, it would go nowhere, because three-fourths of the States would still have to approve it, and what do you think the chances of THAT are? Right…zilch, zero, nada.
So, dear reader, I endeavored to prove to you that a “Runaway” is impossible. Have I proven my case?
This article is based on the following two documents:
“10 facts to rebut the mythology of a runaway convention”, Nick Dranias, Director of the Center for Constitutional Government at the Goldwater Institute
https://goldwater-media.s3.amazonaws.com/cms_page_media/2015/6/3/10 Facts Runaway Conv.pdf
“THE OTHER WAY TO AMEND THE CONSTITUTION: THE ARTICLE V CONSTITUTIONAL CONVENTION AMENDMENT PROCESS”, James Kenneth Rogers, Harvard Journal of Law & Public Policy, Vol. 30
Relevant Text of the U.S. Constitution
Article V Convention
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, 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.
Amendments to the Constitution
PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice- President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;–The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. (See Note 14)–The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,(See Note 15) and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Section. 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
Section. 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
Section. 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
Section. 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
Section. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three- fourths of the several States within seven years from the date of its submission.
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three- fourths of the several states within seven years from the date of its submission to the states by the Congress.
Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.