The Dangers of an Article V Constitutional Convention of States

By Art Harman*

Is the “Article V convention of states” a populist tool to bypass Congress and the Washington political establishment, or a reckless invitation to subvert our Constitution?

What is a “Convention of States?”

For those persons or parties contemplating an amendment to the U.S. Constitution, two routes are specified in that document’s fifth article: The first is the congressionally initiated method used in all successful post-Bill of Rights amendments. The second allows two-thirds (34) of the fifty states to petition Congress to convene a Constitutional Convention for the purpose of making amendments regarding any specified matter.

Some see the latter strategy—the “convention of states” method—as a populist tool to bypass Congress and the Washington political establishment. This road to constitutional change, in their view, would reign-in the power of the Federal Government beyond existing limits. Others see it as a reckless gamble that could result in a disastrous ‘runaway convention’; which is defined as a convention open to unintended amendments and perhaps even a repeal of the Bill of Rights.

Here’s the relevant language from Article V: 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.

Legislators on both sides of the aisle have advocated for amendments to the Constitution based on a bewildering variety of causes: for a balanced budget; for term limits; for limiting but not abolishing the income tax; for repealing the Seventeenth Amendment and/or the Second; for defining the Commerce Clause; for prohibiting unfunded Federal mandates; for revoking First Amendment protections on certain types of political speech; for abolishing the Electoral College, etc. The very multiplicity of these causes makes it that much easier to call a convention of states.

The idea of a convention of states to change the Constitution has enjoyed brief periods of popularity in the last century or so of American political life: In the early 1900s the cause du jour called for the direct election of Senators; fifty years later income tax limitations were popular; and since the late 1970s a constitutional amendment has been sought mandating a balanced Federal budget.

The Balanced Budget Amendment campaign, nearly successful, actually reached 32 of the 34 states needed for Congress to call a convention. Then, Americans had second thoughts, inspired by the potential dangers of a ‘runaway convention.’ The absence of rules in the Constitution to prevent such an occurrence—known ominously as “the silence of the Constitution”—made a runaway convention a distinct possibility. Given these risks, 16 states rescinded their calls for a convention of states. Today, active calls regarding the balanced budget issue number 28 states; some of these states also passed calls for a conservative multi-issue series of amendments that include a balanced budget.

What Are the Dangers of a Convention of States?

For decades, Phyllis Schlafly, the late conservative leader and founder of Eagle Forum, sounded the alarm against any kind of constitutional convention, especially the convention of states. Schlafly and many others found serious flaws in what is taken as Gospel by convention advocates, yet found nowhere within the parameters of Article V.

For example, many state convention calls are limited regarding the subject of proposed amendments. And they specify how calls from other states can or cannot be combined to reach the two-thirds threshold, but Schlafly warned that “… the only power the states have under Article V is the opportunity to submit an ‘application’ (petition) humbly beseeching Congress to call a convention… some purport to make the application valid for only a particular amendment such as a federal balanced budget or congressional term limits.”

But given the lack of guidance in the Constitution and no clear authority from the Supreme Court, Congress might decide to accept, combine, or reject different calls, using its own judgment, thus paving the way to a runaway convention.

Is this nightmare scenario the only way to run a convention of states? Not necessarily: An enlightened conservative-led Congress might indeed honor every state limit and allow the states to set critical rules and select delegates.

On the other hand, a radical leftist or a “Republican In Name Only” (RINO)-led Congress might combine calls from conservatives and George Soros’s activists alike, ignore any restrictions in varying calls for a convention, and leave themselves open to every disastrous idea on the “progressive” agenda. And a 'packed' left-wing Supreme Court may uphold such combinations.

Finally, many convention of states supporters focus only on the legislative route to ratification. Yet Congress alone decides whether ratification will proceed by state legislatures or state conventions. Such ratification conventions could be run by well-connected politicians, radical leftists or a myriad of special interest groups.

Will the Left and Deep State Sit This Out?

No one in their right mind should believe that left-wing radicals will sit out a constitutional debate.

Conservative advocates of a convention paint an image of conservatives and libertarians planning for a congenial convention absent the Left or even RINOs. The reality is that liberal states would be sending their dream delegates to do battle with conservatives. Barack Obama, Hillary Clinton, Bernie Sanders, and George Soros’s top allies would surely all be awarded delegate slots in liberal-leaning states. Naturally, they would push their own amendments, fight for their rules, attack conservative amendments and the Constitution itself.

There would be other internecine factions at play. The “Never Trumpers” and the Left’s “Resist” campaigns would most certainly use their favorite propaganda and psychological warfare techniques to poison the public’s image of the Constitution and conservative amendments. This plays perfectly into the strategy of the far-left media and leftist radicals. Rather than engaging in a civil discourse, they routinely follow murderous Soviet dictator Lenin’s advice to “write in a language which sows among the masses hate, revulsion, and scorn toward those who disagree with us.”

Those willing to risk a convention of states perhaps fail to consider that Leninist-Stalinist tactics could be used to trash the Constitution, painting it as outdated and deplorable, written by slaveholders for the benefit of slaveholders: If slaveholders wrote the Constitution, then by extension the entire document and all our liberties are based on racist precepts and must be abolished. Support for conservative amendments or mere opposition to radical amendments would quickly become radioactive; what couldn’t be accomplished at the convention and in the media, taxpayer-funded lawyers at the Legal Services Corporation and the lawyers who sued to block virtually all of President Trump’s policies and orders would seek to accomplish in the courts.

Al Carroll’s 2004 article, “How Would You Change the Constitution?” at counterpunch.org is an example of how a media propaganda campaign against the Constitution might look.

"America’s constitution is a sacred cow. Some cows should not be worshiped. Some should be slaughtered. That is not true of all of the US Constitution, but America would be better off if some parts of it became hamburger…. I often tell my students that America is great not because of the constitution, but in spite of it, and especially in spite of the founders. The constitution itself is clearly at the root of many of our worst problems in American society today."

Amendments offered by the Left could subtly and with clever wording gut everything we hold dear in our Constitution; of course, they would bully easily swayed RINOs into supporting them. The Left’s superior ability to organize and mobilize activists and the young, combined with their control of the media, would give them an unbeatable hand in delegate selection and rulemaking.

Why Obey the Constitution Now?

Conservatives often argue that Congress, presidents, bureaucrats, and the courts don’t obey the language and intent of the Constitution as a matter of course. Liberals spread the falsehood that we have a “living constitution” which renders the actual text meaningless and subject to the whim of politicians and liberal media interpretation. Neither of these are reasons to alter the Constitution.

Before moving to amend the Constitution and thereby risking a runaway convention, potential amenders should ask why the three branches of our government would suddenly start obeying the Constitution with new amendments in place. After all, a Congress that ignores the Tenth Amendment, won’t repeal Obamacare, and passes unbalanced budgets would simply find loopholes in any new amendments, or just ignore them like they do with the existing text.

Different Convention Calls

Supporters of a convention of states claim that any call for constitutional change would be narrowly framed to include only one or a specified few amendments. In reality, Republican legislators now face calls from two conservative factions: Those promoting a balanced budget-only convention, and those promoting a broad spectrum of many unspecified conservative amendments. The latter emerge from ideas expressed in Mark Levin’s 2013 book, The Liberty Amendments: Restoring the American Republic. Both campaigns maintain advocates in legislatures; indeed, should both calls reach the 34-state threshold requiring Congress to act, these mixed topics could spark an unlimited convention.

Additional examples of major conservative amendment campaigns include Utah’s 2015 H.J.R. 7 call. This call is limited to a single amendment and one broad issue: a balanced budget and unspecified “fiscal restraints.” Meanwhile, Missouri’s 2017 Senate Concurrent Resolution 4 is very broad in scope, calling for amendments without limit based on the proposed amendments in conservative Mark Levin’s book.

From the radical Left, we have the “Move to Amend,” backed by George Soros’s Democracy Alliance. This proposal would gut the First Amendment and eliminate a citizen’s right to free speech in support of (or opposition to) political candidates should any money be involved in that process. Amendments to effectively kill the Second Amendment and the Electoral College also figure prominently, alongside other Leftist dreams.

Vermont’s 2014 Joint Senate Resolution 27 is a left-wing call for unlimited amendments and a broad scope of issues. Among other things, it seeks to limit “the corrupting influence of money in our electoral process, including, inter alia, by overturning the Citizens United decision.” An early version of Hawaii’s 2012 House Concurrent Resolution 114 called for repealing the Second Amendment as well as declaring Obamacare constitutional, abolishing Senate filibusters and the electoral college, and changing the Senate’s Advise and Consent power over nominations from three quarters to a simple majority.

Many of these calls include prohibitions on being combined with different calls, but consider the following: Would conservatives encourage combining a call for a single balanced budget amendment with a multiple-amendment call that includes “fiscal restraint”? That breaks the prohibitive language at their own hands. Remember, few calls have an imposed time limit; for good or ill, they might come to pass decades or even centuries in the future.

The Deal with the Devil

Here’s a nightmare scenario: Well-meaning conservatives, overeager to get sufficient states to call a convention, and perhaps worried about losing control of a few legislatures in an upcoming election, close their eyes for a perilous moment and sign their names in blood on a “deal with the devil.” In other words, to get what they want, they give the Left one or more of their proposed amendments in exchange for support on a balanced budget or a few other conservative amendments.

Most honest conservatives would shout “Never! I will not sign!” But tradeoffs and sellouts are a routine part of the “sausage making” process on major bi-partisan bills: Witness the infamous “Cornhusker Kickback” and “Louisiana Purchase” during 2009’s Obamacare vote, as well as the Republicans who provided the crucial votes to pass President Biden’s 2021 INVEST in America Act, known as the ‘infrastructure bill.’ RINOs might thus be eager to trade support for their own lukewarm amendments with leftists for support of a far more radical agenda.

That’s not as impossible as you might think. Such an alliance occurred in the secretive meetings of pro-convention of states legislators at the “Mount Vernon Assembly” and the “Assembly of State Legislatures” both convened in 2013. Here both Republican and Democrat legislators linked arms and participated in support of a convention of states.

13 States Can’t Stop a Dangerous Amendment

Because 13 states can block ratification of any amendment, proponents of a convention of states argue that a runaway convention or proposed amendment dangerous to our democracy should not be feared. According to the Convention of States Project’s website, “…the stringent requirement that three-fourths of the states (38) must ratify any proposed amendment acts as a final, effective protection against a “runaway” Article V convention. It only takes 13 states to block a bad amendment proposal.”

At first glance this seems to make sense. But Paul Westlake refutes this comforting myth at AmendmentGazette.com: "[O]nce a proposal has been officially sent out to the states for ratification, it’s out there forever, unless the proposal itself includes a time limit for ratification [see Dillon v. Gloss (256 U.S. 368) and Coleman v. Miller (307 U.S. 433)]. Even if 13 or more states reject an amendment, those same states can revisit the proposal at any time and continue to schedule votes until proponents achieve the desired outcome."

For real-world proof of this statement, look at the 27th Amendment, which prohibits Congressional pay raises without an intervening election: It was ratified in 1992, 202 years after it had been sent to the states!

Here’s another troubling scenario in which leftists could score a major victory in spite of the 13 states rule: The George Soros backed “We The People Amendment” seeks to strip Constitutional protections for political speech supporting or criticizing candidates if there is money involved: “The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment” is how Soros puts it. Leftist courts might interpret this injunction to include not just paid ads and turnout operations by large committees, but also personal posts supporting candidates on social media. Didn’t you send your post or tweet via the phone or computer you bought with money and using a paid internet service?

Admittedly, given the current political climate, an amendment of this type would probably fail to attract ratification. Breathing a sigh of relief, opponents might declare it dead forever—but wait! Consider how much the political map has changed in the past few decades. Indeed, the route to ultimate ratification lies through the passage of time. Consider the following: The historically Democratic south is now solidly Republican; California, which twice elected Ronald Reagan as governor and twice helped elect him as president, is now solidly Democratic; In 2016, President Trump won several Democratic strongholds in the Rust Belt, to the consternation of many liberals in the media.

Suppose that the Soros-backed anti-free speech amendment gets ratified by 20 states within its first ten years. Changing demographic or political trends over the coming decades might conceivably turn 18 formerly conservative states liberal. Then the radical amendment becomes part of our Constitution—and you’d better be careful with political speech of any kind.

Soros’s “We The People Amendment,” as introduced in Congress, includes no time limit for ratification, and therefore might be ratified decades or centuries in the future should Congress or a convention send it to the states. Again, if Congress selects state ratification conventions, then legislatures are bypassed, and ratification delegates are suddenly open to pressure from special interest groups and subject to personal attacks in the media. Conventions might then be reconvened at will until ratification occurs.

The truth is that 13 states cannot block a dangerous amendment.

Rules for Conservatives—or Radicals?

Both Barack Obama and Hillary Clinton studied leftist radical Saul Alinsky’s ‘ends justify the means’ tactics, as outlined in Saul Alinsky’s infamous book, Rules for Radicals. His “fourth rule” states: “Make the enemy live up to their own book of rules. You can kill them with this.” Regardless of who writes the rules, Congress, delegates or legislatures, the Left will use even the best rules to tie the hands of conservative participants in an attempt to hijack the convention. Thus, the convention of states quickly becomes a battleground with every special interest fighting to get in on the action.

Article V of the Constitution allows states to petition Congress to call a convention, but is silent on who would get to write the rules, select delegates, or enforce attempts to expand the scope. This vagueness opens the way for Congress to write the rules. According to Phyllis Schlafly, “[T]he Call is the governing document which determines all the basic rules such as where and when a convention will be held, who is eligible to be a delegate (will current office-holders be eligible?), how delegates will be apportioned, how expenses will be paid, and who will be the chairman.”

Schlafly’s analysis, in other words, indicates Congress’s resulting “Call” might not be just a command to go forth and hold a convention, but the convention package itself, dictating who runs the convention and sets the agenda. This seems to defeat the entire purpose of using Article V to bypass Congress.

Congress might also broadly interpret the phrase “call a convention for proposing amendments” as meaning that conventioneers could ignore state limits and feel free to propose amendments on anything at all.

Conservatives and libertarian convention supporters might convince themselves that they would write the rules and be the delegates, but it’s more likely that politicians and party bosses would end up as the delegates, whether selected by Congress, legislatures, or in special elections. The Left, with its advantages in mobilizing activists and using the media, will certainly initiate a power grab to gain control of any convention.

The Left and its media will use their built-in bully pulpit to demand that delegates be apportioned by population, rather than one or a more delegates per state. If enacted, this single rule would hijack any convention. The largest and most liberal states could then endanger the very survival of our Constitution.

Also, if a simple majority vote by delegates is used to approve amendments, Leftists would be able to advance amendments that would never receive the initial approval from two-thirds support in Congress or from the states. And if delegates vote to rewrite the rules once convened, or replace sitting delegates, it’s all over; no Constitutional provision or Federal law specifically prevents such an occurrence. As with the first constitutional convention, nothing is off the table, from a wholesale rewriting of our Constitution to a radical change of the ratification process.

Congress, RINOs, the ‘deep state,’ special interests, Demo- crats and the radical Left will embrace this fight; the complicit media will paint conservative rules as the “real” enemy of the Constitution. And need I mention the Left will challenge everything endlessly in court?

All the above uncertainties beg for definitive answers, but the Constitution remains silent on these matters.

Certainly, the Left will exploit that lack of guidance, and were they to have control of both Congress and a 'packed' Supreme Court, their exploits may rule.

The risks to our republic are too great to entrust to today’s politicians and special interests with sweeping Constitutional change.

How Would the Left Rewrite the Constitution?

It’s easy to imagine the nightmare scenario of how the Left would rewrite our Constitution given half the chance—but it’s even easier to read their own words on the matter:

President Obama attacked our Constitution for containing no guaranteed welfare ‘rights’ in a 2001 interview with Chicago’s NPR affiliate, WBEZ-FM. "[T]he Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.… Says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf."

Rep. Jesse Jackson, Jr. took to the floor of the House of Representatives on March 2, 2011, to amplify upon President Franklin D. Roosevelt’s call for amending the Constitution with new guarantees for welfare and iPod rights:

"[FDR] says we need to add to the Constitution of the United States the right to a decent education for every American. How many schools would such a right build from Maine to California? How many people would be put to work building roofs and designing classrooms and providing every student with an iPod and a laptop?"

In his 2014 book, Six Amendments: How and Why We Should Change the Constitution, former Supreme Court Justice John Paul Stevens revealed his goal to abolish forever our right to keep and bear arms by adding just five words: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the militia shall not be infringed.”

From Obama’s welfare rights to Jackson’s iPod rights, and to Justice Stevens’ unseemly lust to abolish the Second Amendment, the Left is ready to pounce with amendments that would forever abolish our liberties.

Soros vs. Soros?

Many wonder if the Hungarian born, ubiquitous George Soros supports or opposes a convention of states. The answer is ‘both.’ Soros’s Foundation to Promote an Open Society was credited for opposing the convention, given its donations to a coalition of anti-convention radical leftist organizations, including Common Cause and People for the American Way. Yet Soros is also a major donor to the Democracy Alliance, which is a Founding Endorsing Organization of Move To Amend, which supports either a convention of states or a Congressionally-passed amendment to gut the First Amendment.

Soros’s Open Society Foundations (then called the Open Society Institute) and other left-wing groups hosted the “Constitution 2020” conference in 2005 at Yale. Here’s a snippet from the conference’s website via Archive.org:

"It is time for progressives to set a constitutional agenda for the 21st Century…. If progressives are to rehabilitate that Constitution, they must now, more than ever, articulate constitutional ideals capable of inspiring the next generation."

But, in truth, George Soros’s radical agenda would be advanced by left-wing amendments approved by either method of amending the Constitution.

A danger may lie in the Left keeping a low profile while conservatives pass such calls in as many GOP-controlled legislatures as possible. Then the Left might go public and push for calls for their radical amendments to gain a total of at least 34 states having issued some sort of call for a convention of states. Whenever the Left may next gain full control of Congress, they could then issue a call from the mix of conservative and Leftist state calls, and pack or otherwise control the Supreme Court in anticipation of challenges. That would set the stage for a convention of states occurring under the most dangerous circumstances.

What’s so Wrong with Our Constitution?

Few Constitutional scholars would argue that the document doesn’t protect our liberties, yet the concept that many amendments are suddenly essential to restore Constitutional government unwittingly makes this case.

Rather than risk our liberties on a runaway convention, and—given that the Constitution has indeed preserved our liberties since 1789—the safe and prudent choice would be to concentrate on enforcing the Constitution we already have, by merely insisting our elected leaders follow and respect its plain language.

Conclusion

An Article V convention of states has been promoted as a way to rein in the power of the federal government. Given even slight risks of a runaway convention and the lack of conservative control in enough states to ratify any resulting proposed amendments, perhaps “doing nothing” is the safer option.

The authors of the Constitution made the amendment process difficult to discourage spurious attempts to manipulate our founding document. A convention of states may seem an easier way to amend the Constitution, yet it may become a trap. Congress’s role regarding a convention of states remains the great unknown. There is little agreement regarding this matter among experts. Without a precedent beyond the original and unlimited Constitutional Convention, there is no way to be completely certain a convention couldn’t rewrite rules, replace delegates, completely rewrite the Constitution, or change the ratification process.

A truly conservative-led Congress could be counted on to respect state limitations; few would trust a radical left-wing Congress to respect such limitations should they be handed the opportunity to rewrite our Constitution.

And keep in mind, ratification of dangerous amendments cannot be blocked by 13 states, given shifting political tides over decades. It’s a game of Russian roulette: each state has the chance to elect liberal legislatures that could add yet another ratification to the total required for an amendment. Likewise, if Congress mandates state ratifying conventions, these could be dominated by leftists and special interests, and re-convened at-will until an amendment is ratified.

Few shortcuts exist on the path to true Constitutional security. The public needs to elect candidates who will enforce the Constitution and hold elected officials accountable for their votes; we need to inform a disinterested citizenry regarding its civic duties to help preserve our constitutional republic.

Here’s some plain wisdom from a plain-speaking conservative: “A constitutional convention is a horrible idea. This is not a good century to write a constitution,” so warned Supreme Court Justice Antonin Scalia in a 2015 speech to the Federalist Society.

Phyllis Schlafly sums up the dangers of a convention of states with these words of warning:

“The whole process is a prescription for political chaos, controversy and confrontation. Alas, I don’t see any George Washingtons, James Madisons, Ben Franklins or Alexander Hamiltons around today who could do as good a job as the Founding Fathers, and I’m worried about the men who think they can.”

*Art Harman is the Executive Director of The Conservative Caucus Foundation, with years of experience directing media and grassroots campaigns, including with the Conservative Caucus Foundation. He also wrote space policy for the Trump campaign and advised the Trump White House on border security, space policy and international broadcasting.