Five Myths concerning Article V

Stock Photo of the Consitution of the United States and Feather QuillArticle V is a single sentence containing 139 words with three distinctive parts. The first section describes two methods for introducing changes to the Constitution. The next section contains two proposals for adopting any suggested changes to the Constitution. The last section contains two prohibitions for any proposed changes to the Constitution. The first prohibition was temporary and became obsolete in 1808. Article V reads:
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.
Myth #1: An Article V Convention or an Amendments Convention or a Convention of States is not the same type of convention as a Constitutional Convention (aka Con-Con).
Reality: Proponents of a convention agree that a con-con is dangerous but will quickly point out that they are calling for a [insert your favorite convention term here]1. In reality these terms are interchangeable. In the late 70’s/early 80’s a con-con fell two states shy of being convened due to the educational efforts of organizations (The John Birch Society, Eagle Forum, etc.) which explained the inherent dangers of a convention. Today, the idea of a convention is being repackaged to make the proposal look attractive to newly awakened and unsuspecting patriotic Americans. The easiest way to dispel this myth is to ask which part of the Constitution grants the authority for the convention being proposed. Regardless of the term used, the same clause in the Constitution is always referenced: “The Congress… on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments…” Don’t be fooled by the different terms, they all refer to the same type of convention.
Myth #2: States call the convention and/or have control over the convention.
Reality: This myth is destroyed by simply reading the text of Article V. The grant of authority to convene a convention is given to Congress. The states only have power to petition Congress. Once two-thirds of the several states petition Congress to call a convention then Congress is constitutionally required to establish the convention. Article I, Section 8, Clause 18 delegates to Congress the power “[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers [that is, in Article I, Section 8, Clauses 1 through 17], and all other powers vested by this Constitution….” The power to “call a convention for proposing amendments” is one of those “all other powers”. Therefore, pursuant to that power, Congress may enact whatever “law[ ] which shall be necessary and proper for carrying into execution the … power[ to call a convention]”2. This exclusive authority would include (1) establishing procedures to summon a convention; (2) setting the amount of time allotted to its deliberations; (3) determining the number and selection process for its delegates; (4) setting internal convention procedures, including formulae for allocation of votes among the states; and (5) arranging for the formal transmission of any proposed amendments to the states3.
Myth #3: States can limit a convention to specific amendments or topics through their application for a convention.
Reality: Article V is broadly inclusive: “… on the application of the legislatures of two-thirds of the several States, [Congress] shall call a convention for proposing amendments (emphasis added)….” It places no limitation on the number or scope of amendments that would be within a convention’s purview. Any new convention must have the authority to study, debate, and submit to the states for ratification whatever amendments the convention considers appropriate. A limited convention would be constitutionally impermissible for the reason that no language is found in Article V that authorizes them. Consequently, the many hundreds of state applications for a convention to consider amendments on a particular subject are null and void4.
Myth #4: The ratification of any new amendments to the Constitution requires a minimal approval of three-fourths of the several states [assuming the minimal 75% threshold cannot be lowered].
Reality: The Articles of Confederation originally established the United States of America when all thirteen states ratified it in 1781. This was the first constitution for the united States and remained so until it was replaced by the current U.S. Constitution in 1789. Article XIII of our first constitution required approval by all thirteen states for any changes made to the Articles of Confederation. It read, in part:”…the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State (emphasis added).” This stipulation was not met when the Continental Congress proclaimed that the new Constitution had been ratified on September 13, 1788. When the new government convened for the first time on March 4, 1789, North Carolina and Rhode Island had not yet ratified the new constitution. One constitutional ‘expert’ erroneously claimed this precondition was met when each state merely called for a state ratification convention5, yet Rhode Island did not call for a state ratifying convention until January 17, 1790. Patrick Henry stated: “I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past.” History provides an example of a future convention potentially creating a new constitution and bypassing the current ratification specifications.
Myth #5: A convention cannot change the whole Constitution [assuming there are limits for changes and that drastic alterations cannot be made to the current Constitution].
Reality: According to Article V the only prohibition against changes to the Constitution is “that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” Can the first amendment be changed? Constitutionally, yes. Can the second, fourth or ninth amendment be changed? Constitutionally, yes. Can the ratification process be changed? Constitutionally, yes. Apart from the one remaining prohibition mentioned in Article V, a convention can change every other aspect of the Constitution and it can change as much of the Constitution as the convention decides. Daniel Webster admonished: “Hold on, my friends, to the Constitution and the Republic for which it stands. Miracles do not cluster, and what has happened once in 6,000 years, may not happen again.”
1. COS Project Team, Constitutional Convention vs. a Convention of States, http://www.conventionofstates.com/news/constitutional- convention-vs-convention-states-0, (Accessed November 12, 2013).
2. Dr. Edwin Vieira, Jr., Ph.D., J.D., Prudent Fear of the Unknown Is No “Fallacy”, http://www.newswithviews.com/Vieira/edwin262.htm, (Accessed November 12, 2013).
3. Congressional Research Service, The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, p. 4. 4. Ibid., pp. 10-11.
5. Michael Farris, Through the Founder’s eyes, http://www.hslda.org/courtreport/v21n4/V21N401.asp, (Accessed November 12, 2013).