February 9, 2014
By Robert Berry
been dormant for centuries, a potent section in the U.S. Constitution
is now in the minds and on the lips of a new generation of reformers who
are determined to keep the nation out of an abyss. As America stares
hard at the darkness ahead, the new reformers have begun to popularize
this forgotten constitutional provision that might well become Official
which hardly needs stating, is that the federal government has become
the very monster the founders anticipated. Quite likely, the beast we
face is far beyond anything that could have been imagined by the
founding generation. Even today it is hard to adequately comprehend the
omnipresent and, thanks to the NSA, omniscient federal menace that
overhangs every aspect of life in 21st-century America.
The founders' concern that power would be consolidated at the federal level is dealt with in Article V of the U.S. Constitution.
Author Mark Levin, in his blockbuster best-seller, The Liberty Amendments: Restoring the American Republic,
based his ideas for reform on this less well-known means by which
amendments may be proposed -- a process that entirely outflanks
Washington's fixed fortifications. Levin cogently argues that attempts
at reform from within Washington are futile.
Obviously, what is needed is a way to trump the Beltway ruling class from without.
Article V, which prescribes the amendment process. Article V
establishes the amendment process as a two-phase affair: proposal,
followed by ratification of three fourths of the states. The states
have no way to ratify that which has not first been proposed. From the
beginning, the states have relied on congressional super-majorities to
do the proposing.
the founders knew that Congress would be loath to propose anything that
would limit federal power, so they included a way for the states to
propose amendments in an ad hoc assembly Article V styles as "A
Convention for Proposing Amendments."
idea of using the amendments convention assembly has surfaced from time
to time in U.S. history -- most recently in the 1980s, with the
movement to propose a Balanced Budget Amendment (BBA). The effort
peaked with 33 states passing resolutions -- just one shy of the
required two-thirds of state legislatures, which would have compelled
Congress to issue a call for the amendments convention.
That's when the effort took a bizarre detour -- into oblivion.
BBA advocates of the 1980s, including then-President Reagan, were
decidedly of the political right. The last thing anyone in the movement
expected was for "friendlies" from elsewhere on the right to object to
the idea in near hysterics as a plot to render the Constitution null and
void. The unlikely opponents, while not necessarily opposed to a BBA,
condemned in no uncertain terms the use of the amendments convention to
propose it. It quickly became evident, from the critics' rhetoric, that
they had conflated the Convention for Proposing Amendments assembly
with a so-called plenary (full authority) Constitutional Convention.
advocates attempted to clarify the difference between the types of
conventions by pointing out that, as sovereigns, the states have never
needed permission from the Constitution to call an actual Constitutional
Convention. Indeed, the only
reason to invoke Article V would be to self-limit the convention's
authority to "proposing amendments," as the assembly's name indicates.
more restrictive was the scope of the states' resolutions, which sought
to limit discussion to the consideration of a single amendment -- a
BBA. The argument was that, during the amendments convention, if a
majority of the states, each represented by a delegation of state
legislators, voted for a BBA, the proposal would be transmitted to
Congress and then to the states for ratification -- just as every other
amendment proposal in U.S. history.
BBA advocates argued that if the delegates were to propose anything
other than a Balanced Budget Amendment, Congress would be barred from
forwarding the proposal to the states.
The critics would have none of it.
appeals to the public, the critics insidiously left out any mention of
the ratification process by three fourths of the states -- the
implication being that once the proceedings began, there was nothing
that could be done to hold it back when, inevitably, extreme elements
moved to dissolve the Constitution. When challenged on this, the foes
weaved the assertion into their conspiracy theory, adding that the
out-of-control assembly would simply declare its own sovereignty and
dispense with the ratification process altogether!
preposterous as this notion was, the accompanying slogan was more
effective: "We don't need a new Constitution!" Gobsmacked, the BBA
proponents could only look on as state legislators made for the tall
grass. One by one, states began rescinding BBA resolutions.
a postscript to this sad chapter, it should be noted that by the late
1980s, the national debt had just topped $2 trillion. An effective BBA
at that time could have stopped the bleeding that, by any objective
measure, has become an existential threat.
In 2009, an academic from the University of Montana was surveying opportunities for research. Of particular interest to Professor Robert G. Natelson were areas of constitutional scholarship characterized by a scarcity of research, poor research, or, optimally, both.
by the vestigial Convention for Proposing Amendments mentioned in
Article V, Natelson was
struck by the paucity of modern-day scholarship on the topic despite an abundance of original source material.
Quietly, he set to work.
long, Natelson had acquired nearly all of the journals of founding-era
conventions. This was added to his existing collection of material from
each state's ratification convention as each considered whether or not
to approve the proposed 1787 constitution. A picture of early American
convention tradition began to emerge.
a wider net, he pulled in over 40 generally neglected Article V court
decisions, some of which had been argued before the Supreme Court. In a
series of publications, Natelson churned out his findings (here, here, and here), which surprised many -- including himself.
The research quickly became the gold standard of scholarship about the process, known formally as the "State-Application-and-Convention" method of amending the Constitution.
held that, far from being a self-destruct mechanism, the founders meant
for the process to be used in parallel to the congressional method as
yet another "check and balance" within the framework of the newly
constituted federal government.
importantly, Natelson drew a strong distinction between the assembly
mentioned in Article V and the oft-mentioned Constitutional
Convention. For this reason, he is quick to correct anyone mistakenly
referring to the Convention for Proposing Amendments as a
research trove smashed the conspiracy theories of the 1980s and has
become the intellectual base of the resurgent Article V movement that
has been joined by Levin and other prominent reformers. When the
history is written, it will record that this was the moment the Article V
movement achieved critical mass.
new reformers would do well to press on with the case for
state-initiated amendments and ignore the tired conspiracy theories of
the past. Having been marginalized to an almost comic degree, the foes
of yesterday have been effectively dispatched.
When a battle is won, it is wise to move to the next battle, for the waiting opponent is formidable and lives on Capitol Hill.
Robert Berry writes about economic and constitutional matters and is the author of Amendments Without Congress: A Timely Gift from the Founders and Constitutional Coup: America's New Lease on Liberty. Bitcoin address can be found here.