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Correcting Hillary Clinton’s Misconceptions About the Movement for Constitutional Amendments

Correcting Hillary Clinton’s Misconceptions About the Movement for Constitutional Amendments

In recent months, Hillary Clinton has made numerous inaccurate statements about those Americans working for what the Constitution calls a “convention for proposing amendments.” Because of Clinton’s national standing, her claims merit a response.

Under Article V of the Constitution, when two-thirds of the state legislatures (34) pass matching resolutions called “applications,” Congress must call a convention to propose, not enact, constitutional reforms. The idea is to allow Americans, working through their state legislatures, to propose amendments the Washington, DC establishment opposes.

Because of dissatisfaction with the federal government, several campaigns have sprung up favoring corrective amendments. Although they span the political spectrum, collectively they are referred to as the “Article V movement.”

This article lists some of Clinton’s statements and corrects each:

Clinton: “There’s a big move for change coming from the right that I think would be disastrous for our country.”

Correction: Only one of the major Article V campaigns is based primarily on the right. It is the “Convention of States” organization—assuming one defines reducing federal power as solely a “right wing” cause. The other campaigns promote solutions also favored by the center and left. For example, despite recent efforts by establishment politicians to marginalize the campaign for a balanced budget amendment, its cause is broadly bipartisan. Several state legislatures have signed on with unanimous or overwhelming bipartisan votes. Similarly, U.S. Term Limits enjoys broad bipartisan support.

On the left is the WolfPAC organization. It favors campaign finance reform and has the support of several liberal-leaning state legislatures.

It’s important to remember the Constitution established the amendments convention procedure for all Americans, not just for those on any particular side of the political spectrum.

Clinton: “They want radical, ‘pull ’em up by the roots’ change.”

Correction: None of the amendment campaigns—right, center, or left—favors the open-ended convention needed for radical change. All of their model legislative applications severely limit the convention’s scope.

Clinton: “They want to have a constitutional convention to rewrite our Constitution, to make it friendlier to business, to inject religious and ideological elements.”

Correction: The Constitution does not authorize a constitutional convention, and none of the amendments campaigns advocates one. They favor only a limited gathering—what the Constitution calls a “convention for proposing amendments.” This idea is not unique: American history has witnessed several conventions that suggested constitutional amendments, although none of those conventions had formal proposal power.

Moreover, a convention for proposing amendments has no power to “rewrite” the Constitution. As its name indicates, it may only propose amendments. To be effective, any amendment must be approved by three-fourths of the states (38). This formidable requirement ensures that any amendment enjoys support from the overwhelming majority of the American people’s representatives.

Clinton’s comments about business and “religious and ideological elements” are pure fantasy. None of the legislative applications being promoted by the Article V Movement contain anything specifically pertaining to business, religion, or ideology.

Clinton: “So talk about radical change! They are pursuing it, they are funding it, and they are electing people that are either true believers or are willing vehicles for it.”

Correction: Clinton has the funding situation exactly reversed. All the Article V campaigns have budgets ranging from minimal to modest. None has the financial power to elect anyone. By contrast, their leading opponents—such as the Washington, DC pressure groups Common Cause and the Center for Budget and Policy Priorities—enjoy annual budgets in the tens-of-millions.

Clinton: “The right wing, aided and funded by Mercers, Koch brothers, etc. is very serious about calling a constitutional convention.”

Correction: Again, the Article V campaigns are not seeking a “constitutional convention.” They are simply trying to exercise a constitutional right akin to the right to vote.

Furthermore, the Article V movement cuts across ideological lines. Some right-wingers favor it, as do some left-wingers. Other right-wingers oppose it, as do some left-wingers. My constitutional research helped renew the movement, and I’ve been involved with it for over eight years. I’m personally unaware of any Article V funding from either the Mercer or Koch families. Like the overwhelming majority of those involved in the cause, I do most of my work as a volunteer.

Clinton: “Part of their gerrymandering is to control state legislatures, elect Republican governors.

Correction: All the Article V campaigns are nonpartisan. Several draw wide support from both liberals and conservatives. Incidentally, the comment about Republican governors is further evidence that Clinton’s is ignorant of the process: State governors have no role in the Article V process.

Clinton: “If you really get deep into what they’re advocating: limits on the First Amendment, no limits on the Second Amendment, limits on criminal justice.”

Correction: The only Article V campaign favoring changes in the First Amendment is WolfPAC, which is based on the left, not the right. Neither the Second Amendment nor criminal justice are the subjects of any Article V campaign.

Where the Constitution’s Word “Convention” Came From

Where the Constitution’s Word “Convention” Came From

“The Congress . . . shall call a Convention for proposing Amendments, which, in either Case, shall be valid . . . when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof . . . ” U.S. Constitution, Article V

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”                                 U.S. Constitution, Article VII

The late Phyllis Schlafly, when opposing a convention for proposing amendments, repeatedly likened it to the Republican and Democratic National Conventions. The idea, apparently, was to conjure up images of the chaotic mob scenes we have seen on television.

By so doing, Schlafly committed the common fallacy of anachronism: reading into history or a historical text the meanings and values of another time. The most common kind of anachronism is transferring a modern notion into a time or text when things were quite different—as if a scriptwriter for an old Western movie had John Wayne check his smart phone.

Anachronism can lead to grotesque distortion of the truth: In fact, a convention for proposing amendments is almost as different from a national party convention as the eye of a person is from the eye of a hurricane.

The Constitution uses the term convention three times. It appears twice in Article V and once in Article VII (the ratification provision). The “convention for proposing amendments” refers to an interstate gathering. The other two are assemblies within individual states.

We know from prior and subsequent practice how these conventions are chosen. The in-state gatherings consist of delegates directly elected by the people in pre-set geographical districts. The interstate gathering is a diplomatic gathering of representatives of the state legislatures of the kind called a “convention of the states.”

Schlafly did her best to deny that a convention for proposing amendments is a “convention of the states.” But the evidence is both uncontradicted and overwhelming, and has been confirmed by the U.S. Supreme Court. Myths to the contrary were promoted by a disinformation campaign fostered in academic literature and the press during the 1960s, ‘70s, and ‘80s by establishment liberals who opposed amendments to reduce federal power.

Prior to and during the Founding Era, Americans struggled with what to call ad hoc meetings of these kinds. They were not legislatures, because they were temporary and selected outside the usual legislative procedures. So Americans dubbed them with three different words: congress, committee, and convention.

Congress derives from Latin. It means “a walking together.” Before 1775, it referred to a diplomatic meeting of delegations from different governments. Thus, it was a natural term for a conclave among colonies or states. There was a 1754 Albany Congress, a 1765 Stamp Act Congress, the First Continental Congress (1774), and so forth. New York created a “provincial congress” that administered affairs after the colonial legislature was disbanded and until Independence was declared. The name congress reflected the fact that delegates were elected by towns or counties.

Beginning in 1775 the Second Continental Congress became a quasi-permanent legislative body. In 1781 it was succeeded by the Confederation Congress and in 1789 by the Federal Congress. Application of “congress” to the federal legislature discouraged people from applying it to other assemblies.

A small convention of states sometimes was called a committee. (This term, also, is Latin: the verb committere means to commit to, entrust to.) Further, the word could mean a delegation sent to a convention of states. But these “committees” were easy to confuse with committees within other assemblies, as in “the convention’s rules committee” or “the ways and means committee of the legislature.”

Convention (from the Latin convenire, to come together) originally signified only a meeting. However, “convention” became the name of a policy-making body in Scottish Presbyterian practice, and during the constitutional crises of 1660 and 1689 the English called their emergency assemblies “Convention Parliaments.” In the latter year, Americans began to apply the word to temporary “congresses” and to emergency assemblies.

Thus, throughout much of the 18th century, Americans might call the same kind of gathering by several different words. After Independence was declared but before election of the state legislature under the new state constitution, New York was governed by a “Convention of Representatives.” Beginning in January, 1788, the state convention consisted of members of the new state legislature, which had not yet been formally convened.

To add to the confusion, the identical assembly might be referred to by several names. The records of the New York Provincial Congress show it addressing the Continental Congress as the “continental convention” and the Continental Congress addressing the Provincial Congress as the “provincial convention.”

Fortunately, by the time the Constitution was written, this verbal confusion had been pretty much sorted out.  Temporary in-state conclaves increasingly were called conventions. Interstate meetings were nearly always called “conventions” rather than committees or congresses.

That’s why the framers selected the word “convention” rather than some other term for insertion in Articles V and VII.

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Activists Can Spend Their Time Better Than Trying to Resurrect the Long-Dead “Equal Rights Amendment”

Left-of-center activists are prodding state lawmakers to waste public time “ratifying” a constitutional amendment that, by its very terms, is long dead and can no longer be ratified. Earlier this year they even convinced the Nevada legislature to sign on to their campaign.

They should use their time and energy more wisely by campaigning for amendments that are both feasible and would make life better. One such amendment was proposed by James Madison and approved by Congress over two centuries ago — but could still be ratified today.

In 1972, Congress proposed a measure supporters dubbed the “Equal Rights Amendment” (ERA). On its face, the ERA seemed to ensure equality for women. In a burst of enthusiasm, 35 of the necessary 38 state legislatures ratified it.

As public debate continued, however, it became clear the ERA was a poorly-drafted measure that would do little for women’s rights. It would have transferred massive amounts of power away from local governments and elected representatives, handing it instead to lawyers, judges, and bureaucrats. When state legislatures realized this, the ratifications stopped and several states rescinded.As proposed by Congress, the ERA provided that it would become part of the Constitution only if 38 states approved it within seven years — that is, by 1979. When the ratification campaign bogged down, Congress tried to change the rules by extending the deadline to 1982. Not surprisingly, a federal court ruled that Congress could not do that. Although the court’s decree later proved unnecessary — state legislatures weren’t going to ratify such a flawed amendment anyway—the court’s opinion remains one of the most thorough judicial discussions of the amendment procedure.

Of course, even if Congress’s extension had been valid, the ERA still would have expired long ago.

Do activists have any serious legal basis for raising the ERA zombie? Well, no. Their “legal” arguments are based on a 1997 article written as a law student project. As often happens with student projects, the article is so error-ridden that no court is likely to take it seriously.

Activists should spend their time more productively by promoting useful constitutional reforms overwhelmingly favored by the American people — reforms now blocked by an unresponsive Congress. Examples include federal term limits and a balanced budget rule.

Or, if they want to exercise their fascination for the ancient, they could campaign to complete ratification of James Madison’s original first amendment, which Congress proposed in 1789 as part of the Bill of Rights. Although the requisite number of states have never approved it, unlike the ERA, the original first amendment has no ratification deadline.

As proposed by Congress, the measure provided for growth in the House of Representatives along with the growth in population, until such time as:

the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand.

Adopting this amendment today might induce us to convert the U.S. House of Representatives from a council of Washington D.C. politicians into a large assembly citizen-lawmakers — linked to each other electronically, but residing in and representing their local communities. (The Senate would not be affected.) A large House of Representatives would better represent popular opinion and make it much harder for lobbyists and special interests to control Congress.

It would give citizens much better access to Congress than they have now. It would magnify the voices of the women the activists claim to care about.

Not only has modern technology rendered a very large House of Representatives practical, the cause is also politically feasible: In 1992 dedicated citizens secured ratification of Madison’s original second amendment — now in the Constitution as the 27th.

Whether or not activists undertake that project, they should stop wasting public time. Let the decomposed corpse of the ERA rest in peace.

An Amendments Convention is a “Convention of the States”—Here’s the Proof

An Amendments Convention is a “Convention of the States”—Here’s the Proof

Some opponents of holding a convention for proposing amendments to the U.S. Constitution still claim the nature and composition of an amendments convention is a “mystery.”

That claim has not been viable for several years now, but it certainly is no longer viable with the publication of the copious evidence that an amendments convention is simply a convention of the states—a kind of meeting that has happened many times in our history, and whose protocols and composition are well understood.

The Heartland Institute has just published my article, Why a “Convention for Proposing Amendments” is a Convention of the States. It draws together the copious evidence on the subject. You can get it here.

Convention of States: How the States Meet to Bypass Congress

Convention of States: How the States Meet to Bypass Congress

This article was originally published in

The idea of a convention of states such as the one scheduled for Phoenix, Arizona on September 12 may be unfamiliar to most people, but similar conventions have gathered throughout American history.

British-American colonies first met in convention in 1677 to negotiate an Indian treaty. After that first meeting, inter-colonial conventions gathered on average every four to five years, up to the time of Independence. They considered Indian relations, defense, and other common issues. The famous Stamp Act Congress (1765) and the First Continental Congress (1774) were both inter-colonial conventions, and the Founding generation referred to them as such.

After the Declaration of Independence, the pace of conventions accelerated. State commissioners (delegates) met ten times between 1776 and 1786, including conclaves in Providence, Rhode Island (1776-77), Yorktown, Pennsylvania (1777), New Haven, Connecticut (1778), Philadelphia, Pennsylvania (1780), and Annapolis, Maryland (1786). These gatherings focused mostly on defense and economic matters. The 11th convention of the Founding era became the most famous: the 1787 Philadelphia conclave destined to draft a new Constitution.

Not all these early conventions were successful, but the convention mechanism proved invaluable. Conventions frequently resolved difficult problems that otherwise would have gone unsolved. And contrary to some of the claims you hear today, commissioners stuck by their agendas and did their jobs. This is why Article V of the U.S. Constitution authorizes a convention of states as a way to propose needed constitutional amendments Congress refuses to propose.

Each convention of states is a temporary task force of duly authorized state representatives convened to address and propose solutions to one or more specific issues. A convention results when states accept an invitation (referred to as a “call”) sent by a state, a prior convention, or, occasionally, Congress. The 2017 Phoenix convention was called by Arizona’s state legislature to prepare for the likelihood that a convention will soon meet to propose an amendment requiring Congress to balance the federal budget.

The Phoenix convention is not the first to be held since the Constitution was adopted. In fact, some of the most interesting conventions of states met in the 19th and 20th centuries. The New England states met in 1814 in Hartford, Connecticut to discuss how those states should respond to the unpopular War of 1812. The Hartford Convention proposed several amendments to the U.S. Constitution.

Southern states assembled twice in Nashville, Tennessee in 1850 to coordinate a response to what they saw as overreach by the North. In early 1861, Virginia called a general convention for Washington, DC. That assembly proposed a constitutional amendment it hoped would stave off the Civil War. (The amendment was not adopted.) At the same time, several seceding states met in Montgomery, Alabama to draft the Confederate Constitution.

Lasting success was enjoyed by the 1889 convention of states called by Kansas for St. Louis, Missouri. It successfully proposed state and national anti-trust laws. During the 20th century, a series of small conventions negotiated the allocation of western river waters. The best known of these was the seven-state Colorado River Compact Commission of 1922. The latest was the five-state convention that divided the waters of the Upper Colorado River in the 1940s.

Historically, most conventions of states have consisted of only a few states within a particular region, such as New England or the Midwest. But seven have been national in scope (“general conventions”). Whether regional or general, however, conventions have followed certain common protocols, including the rule by which participating states have equal votes.

The Article V Information Center in Denver recently posted a list of prior conventions of states. The list shows there have been 38 fully verified conventions and another five for which the Center has partial information. The Center website contains a great deal of additional information about conventions of states and the constitutional amendment process.