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Some of the leading Nay Sayers may be well-intended, such as the John Birch Society, which believes nullification is more suitable that an Article V Convention of States.  Unfortunately, nullification (with the arguable exceptions such as nullifying federal immigration laws or legalizing marijuana, etc.) has never worked.  There are cases (such as Montana) that attempted to “nullify” a federal rule or regulation through State legislature resolutions approved by the Governor only to discover the State bureaucracy ignored it because they receive greater funding from the National Government than the State Government.

Other Nay Sayers, such as the Eagle Forum, Common Cause, the National Association for Gun Rights, and so forth do so for political agenda reasons.  Arguments tend to be speculative (e.g., Con-Con [a slur for a Constitutional Convention], runaway convention, rescission of the Second Amendment, etc.), which contributes to fear;  these organizations do not present evidence to support their arguments.  Evidence is not needed if the arguments are visceral.  For example, it has been said that the 1787 Constitutional Convention was a runaway convention.  Archived records (as in evidence) indicate otherwise.  The Constitutional Convention arose from a convention of states (often called the Annapolis Convention) to improve the Articles of Confederation.  When the delegates realized amendments to the Articles were not possible, they advised Congress and the other States, recommending another Convention.  When the Convention took place, it was constrained by provisions in the Articles of Confederation, such as a minimum of two delegates but a maximum of seven delegates per State, one State, one vote, and so forth.  The assembled delegates produced today’s constitution in 100 days.

An indirect contributor to Nay Sayer arguments is the Congressional Research Service (CRS), represented by Thomas H. Neale, the author of four CRS reports on Article V.  Although well-intended as a nonpartisan evaluation of the Article V concept within the context of modern politics, his arguments inject ambiguity into the rationale and jurisdiction of an Article V convention of States for Proposing Amendments to the Constitution.  For example, in a 2016 report, he asked the question:  “Does Congress have discretion as to whether it must call a convention?”  Neale went on to provide analysis of opinions from various scholars in addressing this question.  Alexander Hamilton, the author of Federalist 85, clearly stated:  “The words of this article are peremptory. The Congress 'shall call a convention.' Nothing in this particular is left to the discretion of that body.”  By implication, no other body, such as the courts, has any discretion in this matter.


the CRS Reports:

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, July 9, 2012

The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress, October 22, 2012

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, March 29, 2016

 The Article V Convention to Propose Constitutional Amendments: Current Developments, November 15, 2017

Of particular note, the CRS is charged by law to update the Constitution Annotated. “The Constitution of the United States of America: Analysis and Interpretation” (popularly known as the Constitution Annotated) contains legal analysis and interpretation of the United States Constitution, based primarily on Supreme Court case law. This regularly updated resource is especially useful when researching the constitutional implications of a specific issue or topic. The Featured Topics and Cases page highlights recent U.S. Supreme Court decisions that demonstrate pivotal interpretations of the Constitution's provisions.”  Most Americans believe the US Constitution consists of a handful of pages, to include the 27 Amendments.  The Constitution Annotated is currently 2,880 pages long.

As an example, of some of the “living Constitution” developments in the Constitution Annotated is the debunking of the “separation of powers’ and “checks and balances” understanding of the Constitution.  Here is a excerpt from the Constitution Annotated:

The Constitution nowhere contains an express injunction to preserve the boundaries of the three broad powers it grants, nor does it expressly enjoin maintenance of a system of checks and balances. Yet, it does grant to three separate branches the powers to legislate, to execute, and to adjudicate, and it provides throughout the document the means by which each of the branches could resist the blandishments and incursions of the others (p.  65).

This “interpretation” is contrary to the explanations provided in the Federalist Papers, in particular Federalist 51.

The drift from federalism to a centralization of governing power in a central, National Government has been insidious and incremental over time.  The prophecy of Alexis de Tocqueville is particularly telling in this regard:

After having thus successfully taken each member of the community in its powerful grasp, and fashioned them at will, the supreme power then extends its arm over the whole community.  It covers the surface of society with a net-work of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd.  The will of man is not shattered, but softened, bent, and guided:  men are seldom forced by it to act, but they are constantly restrained from acting:  such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.  I have always thought that servitude of the regular, quiet, and gentle kind which I have just described, might be combined more easily than is commonly believed with some of the outward forms of freedom; and that it might even establish itself under the wing of the sovereignty of the people.  Our contemporaries are constantly excited by two conflicting passions; they want to be led, and they wish to remain free:  as they cannot destroy either one or the other of these contrary propensities, they strive to satisfy them both at once.  They devise a sole, tutelary, and all-powerful form of government, but elected by the people (Democracy in America, 1840, p. 398).

An Article V Convention of States is a remedy for this shift in governing power.  Nay Sayers that argue against this remedy essentially contribute to the momentum generated by those who believe in a centralized governing power, which is contradictory to the essence of a Constitutional Republic.