In 1830, when South Carolina politicians were arguing for “nullification” of a federal tariff they viewed as unconstitutional, the elderly James Madison penned a public response.

Madison denied that nullification—in the sense of merely declaring federal law to be inoperative—was a valid or workable doctrine. He acknowledged that the nullifiers were relying on his 1798 Virginia resolution for support, but he denied that the Virginia resolution had sanctioned nullification. He also acknowledged that when the Virginia resolution and its Kentucky counterpart were submitted to the other states, none of those states supported nullification, and a majority adopted declarations repudiating the doctrine. (See http://www.constitution.org/rf/vr_04.htm.)

Madison then suggested an alternative state-based remedy: “an amendment of the Constn. according to a process applicable by the States.” Madison was referring to the state-application-and-convention method of amendment, which he personally had helped draft.

Article V of the Constitution provides that all amendments must be ratified by three fourths of the states. Before amendments are ratified, however, they must be formally proposed, either by (1) two thirds of both houses of Congress or (2) a limited-purpose convention that Congress is required to call when demanded by two thirds of state legislatures. The Constitution calls this limited-purpose convention a “Convention to Propose Amendments.” It also can be called an Article V Convention or an Amendments Convention.

The Founders designed the state-application-and-convention method of proposal as a check on federal overreaching, much as the citizen initiative process checks the legislature in many states.

Perhaps contrary to the Founders’ expectations, there has never been a Convention to Propose Amendments. There have been several reasons for this, but since about the year 1960 a primary reason has been fear that such an assembly would be a “constitutional convention” or “con-con” that could prove a “runaway” that takes over the government. (How the convention could do this without control of the armed forces is never explained.)

How justifiable is that fear?

When preparing my book, The Original Constitution, I examined the Founding-Era evidence on how the state-application-and-convention process was designed to work. Subsequently, I reviewed nineteenth and early twentieth-century practices and pronouncements, which largely confirmed the Founding-Era evidence. I compared them with writings, videos, and other media produced by those commenting on the state-application-and-convention process. My initial paper on the subject will be published on September 17 by the Goldwater Institute.

During this research, I found that certain key claims about process are simply not true—even when made by people who should know better. For example:

* A Convention to Propose Amendments is not a “constitutional convention” or “con-con.” It is a limited-purpose assembly targeted at a specific task. Such meetings were exceedingly common during the Founding Era. They dealt with issues such as trade, currency, and state constitutional amendments. In fact, the Constitution actually authorizes three kinds of limited-purpose conventions, of which a Convention to Propose Amendments is only one.

* The Founders created the state-application-and-convention process primarily as a way to rectify federal abuses of power. The Founders recognized that clarifying and corrective amendments might become necessary even when the proper reading of the document seemed clear. The Ninth, Tenth, and Eleventh Amendments all are examples of clarifying and corrective amendments.

* Some have claimed that the procedure governing the state-application-and-convention process is unknown or unknowable. Actually, the Founding-Era evidence, confirmed by the pronouncements and practices over the ensuing 150 years, offers a great deal of guidance. For example, the Constitution permits states applying for a convention to limit its scope to particular subject matter. (Nearly all the Founders addressing the issue expected the states to so limit it.) If a convention suggested a measure outside its call, it would have no legal effect. It would be a suggestion for the future only, and not eligible for state ratification.

* Similarly, the evidence shows that (1) the convention is an agent of the state legislatures, but (2) the convention, not the states, actually drafts the amendments; (3) the states select their own delegates in whatever manner they choose consistent with the Fourteenth Amendment; (4) the convention sets its own rules, including its own voting rules, with an initial rule of “one-state-one-vote;” and (5) the convention may not alter the mode of ratification or do anything else other than propose amendments for state consideration.

I also learned the background behind the assertion that a Convention to Propose Amendments is a “con-con” that could result in a “runaway.” The charge apparently originated among convention opponents in the nineteenth century, who rested their case on the (substantially false) belief that the 1787 constitutional convention had been a “runaway.” Their argument did not gain much traction at the time, but in the 1960s a group of left-wing law professors and judges promoted the charge to frighten people away from trying to reverse activist Supreme Court decisions.

Among those making this argument, most actually had done little or no published research on the subject. The product of those who had published was quite unsatisfactory, suffering from much political bias and little solid evidence: quotations ripped out of context, ignorance of eighteenth-century law, language, and practice; and mutual citation to each other’s writings.

As just noted, most of the 1960s popularizers of the “runaway” theory were solidly left-of-center. Their goal was to derail efforts to adopt conservative constitutional amendments. By a delicious irony of history, however, some on the right have adopted their arguments, often citing people those groups would oppose strongly in any other context.

Along the same lines: I recently saw a video asserting that the “unlimited convention” scenario is accepted by the overwhelming majority of legal scholars. But if this was ever true, it has not been true for over a quarter of a century. Most recent studies of the subject agree that an Article V convention is limited by the scope of its call.

In sum: The Article V amendment process is feasible, sensible, and a lot more safe than continuing down the road we are currently traveling. The Founders gave it to us as a safeguard against federal abuse. The current situation is precisely the kind of crisis for which it was designed.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

Article V of the US Constitution set out the manner in which the document is to be changed for societal/cultural/justice serving reasons.  The text of this article reads:

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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

While the method is clearly onerous, there is a way to make appropriate changes to the document to address problems arising from modernization of society. 

That is not just a method to change, but there is a common law concept here that plays a larger role in deciding how we interpret the entirety of the document.  The very fact that the Constitution itself sets out a method with which to make changes means that any other means of making changes is barred.  So people who say some precedent was made in the 1800′s (it doesn’t matter which one as long if it goes against “original intent”) are wrong. 

So what are the unconstitutional methods of changing the Constitution?

The three branches of the Federal Government each use different methods of making illegal amendments.

Executive

The Executive Branch of the Federal Government has two ways in which it breaks the law, first is the “signing statement.”  In this amendment the President signs a constitutional bill duly passed by both houses of Congress, and simply makes a statement as to how he plans on interpreting it to mean something completely different.  This method has a long history of precedents, let me stress that even if the President’s plans would otherwise be in full compliance with the Constitution, it flies in the face of the Supremacy Clause for the President not to enforce legal statutes in the exact vein that they are passed (so long as they are legal).  Another way the President violates the Constitution is though his cabinet.  When the multitudes of cabinets make laws in the form of regulations, this is in violation of the separation of powers (Congress makes all laws). 

Again it does not matter if the laws are otherwise in compliance with the Constitution or not, the very fact that the Executive Branch is legislating is the violation (amendment).  While I am sure there are many other ways the Executive Branch changes the Constitution, this is a good example of what I am talking about.

Legislative

The legislative bodies change the Constitution whenever they pass laws which are direct contraventions of the Constitution.  Alarmingly, I recently heard some federal legislators mention that you cannot make a constitutional argument in Congress anymore.  That is to say when a bill is debated, there is no longer any consideration or mention of the legality or constitutionality of the bill.  They also change the Constitution when they delegate their constitutionally mandated roles outside the legislative branch (think coining money and declaring war).

Judicial

The Judicial branch may be the most profligate abuser of the Constitution in that the concept of “Judicial review” established with Marbury Vs Madison is unconstitutional.  Remember, changing the way the Constitution is interpreted from original intent is an amendment (and requires an action under Article V of the Constitution).  Let me justify that for a minute. Any contract such as the Constitution is binding on all parties involved.  No reasonable legislative body (such as the ratification councils of the states prior to the ratification) would sign a contract (especially one of such import) in which the meaning of words could change significantly over time- thus, textual-ism and legal precedent are both illegal means of interpretation of the Constitution, and for actions justified under such regimes to be legal, amendments would have to be passed for each “change.”

To make original intent easier to find, there were a series of articles published during the ratification debate called the “Federalist Papers,” and another series called the “Anti-Federalist Papers.”  This is the discussion that took place prior to the ratification of the Constitution.  Within these letters are the exact intentions of the founders, and thus the only legal interpretations of the Constitution.  All interpretations to the contrary are unbinding (unless accompanied by a legal amendment).  Thus all of the times that the Supreme Court used any method other than original intent to make their decision (and they have used foreign law as well as legal precedent, as well as changes in the language to do so) their rulings are by the Constitution unbinding because they represent a change to the Constitution without an amendment.

So Who Is Supposed To Stop Them

There are a couple of ways in a federalist system to stop the three branches of the government from changing the Constitution.  The most effective is nullification.  With this method, the state governments simply pass a law that states the federal law in question is unconstitutional, and makes its enforcement within the state limits a crime.  This method usually entails fines and prison sentences for any state or federal official attempting to enforce the offending statute (normally enforced by the county sheriffs).  The state must stand firm, as the Supreme Court will undoubtedly rule against them. But as Madison said- The Federal Government was not made the final arbiter of their own power, as that would make their judgment, and not the constitution, the law of the land.  There is a common-law concept which states; In a contest between two laws that are equal, the one passed most recently takes priority.

Thus, the Tenth Amendment takes priority in these cases the powers not enumerated to the federal government, nor prohibited to the states, are reserved to the states and the people.  This puts the law on the side of the state government in most cases.

Another way is jury nullification. In this way, during trial, a jury will determine that a person is innocent even though he may have violated the law in question, because the law is wrong.  This method has a long history dating back to pre-revolutionary days.

Probably the least effective way of addressing federal overreach is “voting the bums out.”  Sadly, even if you sent Jesus Christ himself to Congress he would be corrupt and rotten within six years. It flies in the face of human nature to ask a body of people to limit their own power.  Each one of them believes they will use the power to do what is right, and thus fails to see that such power does not belong in one place.  Or worse- simply wants the power, as the majority do, to elicit bribes from the wealthy by selling the liberties of the masses.

Two-hundred + years ago, the states purchased a Bulldog (the Federal Government) to protect them from their neighbors and help smooth out the interactions between their neighbors and each other.  Somewhere around 140 years ago,  this Bulldog got off its leash.  It looked for a time as though no harm was done, but now it is clear to everyone that this was not so.  The Bulldog goes around the neighborhood picking fights, and it has bitten our children over and over.  It is time to reattach the chain to the collar and stop the disregard that the Federal Government shows to the law.

Tim Reeves is an 11 year veteran of the U.S Navy, and is now an engineer, He grew up in Michigan, but has resided in the Pacific NW since 1992. He’s the State Chapter Coordinator for the Oregon Tenth Amendment Center.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

Many (including this writer) think the federal government has slipped its constitutional leash and that the people may have to re-stabilize matters with one or more constitutional amendments. How would this be done?

Article V of the Constitution provides for four methods of amendment:

1. Two-thirds of both houses of Congress propose an amendment to the state legislatures. If three-quarters of the state legislatures ratify, the amendment is effective. Of the 27 amendments approved so far, 26 have been ratified by this method.

2. Two-thirds of both houses of Congress propose an amendment to state ratifying conventions. If three-quarters of the conventions ratify, the amendment is effective. The Twenty-First Amendment (repealing Prohibition) was ratified by this method.

3. Two-thirds of the state legislatures apply to Congress for a new constitutional convention to propose amendments. The Constitution says Congress “shall call” the convention – in other words, Congress has no choice. The convention proposes amendments. Congress must choose whether to send them to the state legislatures or to state conventions for ratification.

If Congress opts for the state legislatures, the amendments become effective when ratified by three-quarters of them.  Over the years there have been scattered state applications to Congress for a constitutional convention, but never two-thirds of the states on the same topic at the same time.

4. Two-thirds of the state legislatures apply to Congress for a new constitutional convention to propose amendments. Congress must call a convention. The convention proposes amendments, and Congress opts for a state-convention method of ratification. The amendments become effective when ratified by three-quarters of the state conventions.

The Founders (accurately) expected the first and second method to be used more often than the third or fourth, since in dealing regularly with federal issues Congress would be well positioned to know when amendment was needed. But sometimes Congress itself would be seen as the problem, so the Founders included Methods #3 and #4 as bypass options.

There is a long-standing debate over whether the state legislatures can limit the scope of a convention to only certain proposals, or whether the convention can propose anything it wants to. Some have argued that Methods #3 and #4 are dangerous because a “runaway” convention might disregard its call and propose anything that suited its fancy.  (The 1787 convention is cited as an example.)  But even if the convention were not legally bound by its call, the danger of a “runaway” is more imaginary than real.

First, any convention would be under enormous political pressure to honor the terms of its call, especially knowing that any proposal it submitted would have to go back to the very states who initiated the call. More importantly, anything the convention proposed would have to be approved by even more states than applied for the convention at the outset.

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.