Objections

The loudest voices spreading fear, uncertainty, and doubt about the safety and legitimacy of the states meeting in Convention aren’t knowledgeable, principled objectors; but those who benefit from and want to maintain the status quo. Their arguments are easily dismantled with the facts. We invite you to learn more here.

opening up the constitution Is dangerouS.

An Article V Convention isn’t “opening up the Constitution.” It’s simply a forum for the states to propose ideas for amendments, in the same way any member of Congress can, at any time. It’s helpful to think of the Convention as a brainstorming session. Until 3/4 of the states ratify a proposal, it’s just that: a proposal. Neither party controls enough state legislatures for any amendments to be ratified without support from the other. While no action is completely free of risk, remember that maintaining the status quo carries risks of its own.

All of our amendments have been proposed by Congress, so we should keep doing it that way.

The fact that all amendments made to our Constitution thus far have been passed in Congress should not dissuade us from continuing to pursue an Article V Convention.  A primary reason we haven’t yet had a Convention is because as momentum begins to build for a certain topic, Congress responds to the political pressure, while maintaining its control, by proposing the amendment itself. It’s fair to say that the Bill of Rights, the abolition of slavery, direct election of senators, the repeal of prohibition, and presidential term limits originated with the states, because they were all preceded by Article V applications before they were passed by Congress.

Another problem with this objection is the suggestion that state legislators are somehow less competent than their Congressional counterparts in dealing with constitutional issues. The absurdity here is that most members of Congress were, in fact, state legislators before arriving in Washington. 

Lastly, most Americans view Congress with mistrust, believing its members, and the unelected bureaucrats to whom they abdicate their lawmaking responsibilities, put the interests of big donors and lobbyists ahead of those of the American people. Congressional approval ratings seldom exceed 20%, and popular support for congressional term limits has reached as high as 78%. Clearly, Americans don’t expect to find the most accomplished or virtuous among us roaming Capitol Hill. 

Giving the states parity with Congress to propose amendments was unanimously adopted by the Constitutional Convention. That we should willingly and permanently mothball this important check on the abuse of their power is absurd on its face.

This Convention could scrap our Constitution and write an entirely new one.

Proponents of this scare tactic claim that this could happen because our existing Constitution was supposedly illegally drafted and adopted by a “runaway convention” whose delegates both disregarded their instructions and illegitimately lowered the bar for ratification. 

These naysayers point to Congress’ Act of February 1787 in an attempt to characterize the Constitutional Convention’s mandate as strictly “amending the Articles of Confederation.” James Madison addressed this issue in Federalist 40, noting that the Constitutional Convention was initiated by the States, not Congress, at the Annapolis Convention in September 1786. There, they called upon the States to send to Philadelphia

commissioners to take into consideration the situation of the United States; to devise SUCH FURTHER PROVISIONS as shall appear to them necessary to render the Constitution of the federal government ADEQUATE TO THE EXIGENCIES OF THE UNION.

Madison characterizes Congress’ verbiage as merely “recommendatory.” Congress did not have the authority to tie the hands of the delegates in any way; specifically, they had no standing to limit the delegates to merely amending the Articles of Confederation.

Also contrary to the naysayers’ storyline, the new ratification methodology wasn’t the result of a rogue process, but a proper recommendation made by the Constitutional Convention that was approved by both Congress and all thirteen state legislatures, as required, before being implemented.

Neither party controls enough state legislatures to ratify anything that comes out of this convention without securing the support of at least some states that are controlled by the other.

We can’t be sure the convention will be safe because the Constitution doesn’t tell us what the rules are or who the delegates will be.

Naysayers would have us believe that these factors are shrouded in mystery; but the Founders deliberately refrained from stipulating these things because they understood that when the states meet in convention, it is the right of the participating states to make these decisions. Over three dozen state conventions have been documented throughout American history, right up into the 20th century. Each one was conducted in an orderly manner and used practices similar to those found in respected guides like Jefferson’s Manual of Parliamentary Practice. The Sherman Anti-trust Law and the Colorado River Compact are both the product of states meeting in convention.

Every governing body in America, from local school and library boards, all the way up to the United States Senate, has rules that prescribe its activities. No one avoids forming a new committee out of fear that its members will run amok. No one worries that one morning our legislators will report for work and suddenly pandemonium will ensue. No one agrees with every piece of legislation that gets passed, but we all take for granted that the business of government will be conducted according to established procedures. There is no reason to think an Article V Convention will do otherwise.

This convention will deprive women and minorities of their civil rights.
This convention will be used to repeal the Bill of Rights.

These are closely related and selectively employed depending on whether the target audience is liberal or conservative. This scare tactic rests on the assumption that when it comes to individual rights, the record is federal government = good, states = bad.  

The truth is, both the states and the federal government have a mixed track record where individual liberties are concerned. As the states had begun leading the way in outlawing slavery and extending habeas corpus and jury trial rights to escaped slaves, Congress enacted the first Fugitive Slave Law and the Supreme Court vacated Pennsylvania’s sanctuary state law

In the century between the infamous Dred Scott decision and Brown v. Board, Louisiana elected the first black Congressmen, but Congress refused to seat them; the Supreme Court overturned the Civil Rights Act of 1875; and New York, Minnesota, and Arizona passed human rights and desegregation laws, while Woodrow Wilson segregated the federal workforce and Franklin Roosevelt interned 120,000 Japanese-Americans. 

Wyoming granted voting rights to women in 1869, but nearly a decade elapsed before Congress introduced a constitutional amendment enfranchising women. It would languish there for another forty years before it was finally passed and sent to the states for ratification. In the meantime, 27 of the 48 states had already granted women the right to vote.

Congress continues to struggle with sexual harassment allegations, the most recent spate revealing the existence of a taxpayer-funded hush fund; it has yet to muster the political will to walk back the profound racial disparities codified into federal law decades ago during the failed “War on Drugs.” In the Hofstra Labor & Employment Law Journal, Steven Andrew Smith & Adam Hansen point out that many states’ civil rights laws are superior to federal statutes. They describe the states as the rightful “primary protector of individual rights,” and argue for a greater role for the state supreme courts in the federal appeals process.[1]

It is not federal supremacy, but rather, the separation of powers and the ability of the states and the federal government to challenge and check one another, that have provided a forum for the robust defense and advocacy of civil liberties in the United States. An Article V Convention does not detract from, but enhances, this dynamic.


[1]Smith, Steven Andrew & Adam Hansen, “Federalism’s False Hope: How state civil rights laws are systematically under-enforced in federal forums (and what can be done about it),” Hofstra Labor & Employment Law Journal, Vol [26:63 2008] available on-line at https://law.hofstra.edu/pdf/academics/journals/laborandemploymentlawjournal/labor_vol26no1_smith%20hansen.pdf, accessed 8 Nov 2018.