Today I will be addressing the following portions of Dudley Brown’s smear campaign, which amount to an argument that the Article V Convention for proposing amendments is an unlimited, uncontrollable free-for-all. Here’s what Dudley said:
“There is NO guarantee a Convention can be “limited.” Article V is the section of the Constitution that allows for a Convention. However it provides virtually no guidelines, nor does it limit the scope. It does not specify who will make critical decisions, or how they will be decided. On top of that, there is no precedent to use as a guide. Not one single Article V activist, not one single constitutional scholar, has seen this process before. … The truth is this: There is nothing stopping delegates from throwing out our Constitution to usher in more “time-appropriate” government systems and authority. … In other words, NOBODY can claim they know how to control a Constitutional Convention. Activist federal judges would govern the Convention. Because there are no existing rules governing the scope or process of a Convention, all these decisions will likely fall to the federal courts.”
Once again, Dudley’s got it wrong. The problem is that he hasn’t done his homework. There have been more than 30 interstate conventions throughout American history. Many of them (but not all) occurred prior to the Constitution’s drafting, which explains why the drafters didn’t describe all the procedures in detail. The procedures were well-known, universal in their essentials, and uncontroversial.
It’s a meeting, Dudley. A meeting of delegates chosen, instructed, and sent by state legislatures to discuss proposals. Not so scary.
Article V’s requirement that two-thirds of the states “apply” for an amendment-proposing convention automatically creates a limitation on the topics that can be considered once the convention begins; each state’s application specifies a convention agenda, and until 34 states agree upon the contours of that agenda, no convention occurs.
By the plain text of Article V, an Article V convention is limited to proposing amendments to become “Part of this Constitution” (the one we already have)—it is not a vehicle for scrapping or rewriting the Constitution.
And let’s not forget that the Article V Convention’s only power is to propose amendments—the same power Congress enjoys under Article V. Each and every proposal only becomes effective if 38 states ratify it.
To summarize, the restrictions, limitations and controls on the Article V process include all of the following, acting in conjunction:
The convention’s agenda is set by the 34 state applications (for COS, amendment proposals must “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress”);
Once 34 states apply for a convention on the same topic and the convention is called, state legislatures select and instruct their delegates;
At convention, any single delegate can object to off-topic proposals as “out of order,” which objection must be sustained;
At convention, a majority of the states must vote in favor of any proposal for it to advance to the ratification stage;
Any delegate who proposes or votes in favor of an amendment beyond the scope of the agreed agenda OR beyond the scope of his/her state legislature’s instructions can be recalled by the state legislature and subjected to penalties according to state law;
Because delegates act as the agents of their state legislatures, a delegate's vote which exceeds his/her instructions or authority is void;
The courts could be called upon, if needed, to protect the process at any point (there are abundant precedents demonstrating that, in fact, the courts DO acknowledge and protect the historical Article V procedures);
38 states must ratify any proposed amendments for them to become effective. This means that it only takes 13 states to block a bad proposal.
The Founding Fathers knew what they were doing when they created this process. And they intended for us to use it to muzzle a power-hungry national government. The time is now.