Nothing to Fear but Article V Itself

Jeffrey Myers of Convention of States Action has published an essay accusing the John Birch Society of “dangerous pessimism.” He promotes it with a line borrowed from Franklin Delano Roosevelt. Pause there and consider it. In defense of opening the Constitution for revision, the convention lobby summons the man who tried to pack the Supreme Court, confiscated the people’s gold, interned citizens by executive order, and raised the administrative Leviathan that Article V promoters now promise to slay. Cicero taught that the enemy within the walls is more to be feared than the army encamped outside them. The convention lobby has taken Roosevelt for its guide and asks constitutionalists to follow. We decline.

That Is Not Our Argument

Myers builds his case on a premise we have never advanced. He insists our objection rests on a conviction that Americans and their legislators are too ignorant to be trusted with self-government. That is a fabrication, and a convenient one. Our objection is legal, not anthropological. It concerns the absence of any enforceable limit on a convention once it assembles. It concerns the silence of Article V on delegate selection, apportionment, credentialing, quorum, voting rules, funding, and subject matter. It concerns what conventions have actually done when the doors were shut. Answer the argument we make. Do not manufacture a softer one and then parade its defeat.

Hamilton Is a Curious Witness

He calls Hamilton to the stand. Hamilton wrote in The Federalist, No. 85 that we may rely upon the disposition of the state legislatures to erect barriers against national encroachment. Two difficulties follow. First, Hamilton in that passage describes the states as sentinels and ratifiers, not as masters of a convention they cannot control once it sits. Second, this is Alexander Hamilton. At Philadelphia he proposed an executive and a senate holding office during good behavior, and state governors appointed by the national government. The man who wished to reduce the states to administrative districts is now produced as the character witness for state control of a convention. If Myers wants Hamilton, he may have all of him.

The Precedent He Will Not Mention

Every argument for a “limited” convention collapses upon a single fact of history. The Confederation Congress issued its call in February 1787 in language no one can mistake: for the sole and express purpose of revising the Articles of Confederation.

The delegates arrived carrying commissions that said precisely that. They then discarded the Articles altogether, wrote an entirely new charter, lowered the ratification threshold from 13 states to nine, and moved ratification out of the state legislatures and into conventions chosen for the purpose. They did it behind locked doors, under an oath of secrecy, with the windows nailed shut against the summer heat. Rhode Island refused to attend and was bound anyway. That is the sole precedent in American history for a convention of the states, and it is not a comforting one. Myers assures his readers that a convention is merely a conversation. The conversation of 1787 replaced a government.

Ratification Is Not the Fortress He Imagines

He rests his whole case on 38 states. Examine what that assurance quietly assumes. It assumes the ratification rule is fixed, when the only convention we have ever held changed the ratification rule as its opening act. It assumes Congress stands outside the process, when Article V hands Congress, and not the states, the choice of ratification mode. In 1933, Congress sent the 21st Amendment to state ratifying conventions rather than to the legislatures, and Prohibition fell in less than 10 months. The legislatures Myers trusts were routed around entirely. The safeguard he offers is held in the hands of the institution he tells us cannot be trusted.

Congress Holds the Gavel

He makes much of two words: “shall call.” Read the remainder of the sentence. Congress receives the applications. Congress decides which applications are sufficiently alike to be counted together. Congress issues the call. Congress fixes the time and the place. The text says nothing whatever about how delegates are chosen or how they vote, and silence is not a safeguard. Silence is an invitation. The convention lobby has spent a decade telling state legislators that Congress is captured, contemptuous, and beyond reform. It then hands that same Congress the gavel, the roll, and the rulebook, and calls the arrangement a check on federal power.

The States Have Sold This Birthright Before

Trust the states, he says. Very well. The states ratified the 16th Amendment and gave Washington a lien on the fruit of every citizen’s labor. The states ratified the 17th Amendment and severed their own representation in the Senate, demolishing the structural protection built for them in the Great Compromise. Those were state legislatures. Those were the reliable guardians of federalism now offered to us as insurance. They were handed the deed and they signed it away, and they did it in a season of far greater civic literacy than our own. Polybius observed that constitutions rot from within, through the slow corruption of the very men entrusted to preserve them. He was not writing about Congress. He was writing about us.

Eighty-seven Percent Is Not an Argument

Myers reports that 87 percent of Americans favor term limits. This is an appeal to the crowd, and it defeats him. The same electorate that produces his overwhelming majority also elects the Congress he calls unfit. If the people return a corrupt legislature to Washington, by what alchemy do they return an incorruptible one to a convention? He cannot have it both ways. Either the electorate is sound, in which case Congress is our own reflection and the defect is not in the text, or the electorate is unsound, in which case a convention is the last forum on Earth to which we should send the fundamental law. Popularity is not law. Fifty-one percent amends not a syllable, and neither does 87.

The Disease Is Disobedience, Not Drafting

Here is the point the convention lobby will not confront. Washington already ignores the Constitution we possess. It taxes what it may not tax. It spends what it may not spend. It wages war without declaration, legislates through unelected agencies, and treats the Commerce Clause as a general warrant. Not one of these usurpations is authorized by the text. Every one proceeds in open defiance of the text. Myers proposes to cure disobedience by adding sentences. If the men in power will not honor the supreme law as written, they will not honor a fresh paragraph stapled to the end of it. You do not reform a thief by handing him a longer list of things he must not steal.

We Surrender Nothing

Finally he charges that opposition to a convention amounts to surrendering a constitutional power. It amounts to nothing of the kind. A man who declines to wager the deed to his house has not surrendered his house. The states retain every remedy the Founders left them: refusal to enforce unconstitutional acts, refusal to fund them, interposition, the ballot, and the plain instruction of the 10th Amendment. Madison warned in The Federalist, No. 49 that frequent appeals of this sort would strip the government of the veneration which time alone bestows. Chief Justice Warren Burger, no Bircher, wrote that there is “no effective way to limit or muzzle” a convention once it convenes. Justice Scalia said flatly that he would not want one, because no man can know what would come out of it.

Call that pessimism if it pleases you. We call it reading the record. Prudence is not cowardice, and caution before an irrevocable act is the first duty of a trustee. We hold this Constitution in trust for those who have not yet been born. We do not gamble with what is not ours to lose.