Article V of the U. S. Constitution & the Convention of States

Article V of the United States Constitution reads as follows:

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.

As far as we can determine there are two ways to amend the Constitution:

Way 1 – Two thirds of both houses of Congress must agree to an amendment and then three fourths of the state legislatures must approve the amendment.

Way 2 – Two thirds of the state legislatures may call for a Constitutional Convention (Convention of States) to propose amendments, which then must be ratified by three fourths of the state legislatures.

There are five problems with this Article, three minor and two major. Let us deal with the minor ones first:

Minor problem 1: Way 2 may well never happen. By the time everyone quits arguing about the specifics of a Constitutional Convention it will be a long time before it can proceed. We had a Constitutional Convention initially because we needed a Constitution but we have never had one since and likely never will.

Minor Problem 2: How state legislatures approve amendments is not subject to judicial review. Probably, in most cases, there is nothing wrong here. If a state has a say three quarter requirement to approve this is probably excessive. The Article needed to be more specific in this regard.

Minor Problem 3: The Article does not confer any emergency powers so that an amendment may be adopted until acted upon by the states. This action could be necessary under certain conditions.

Major Problem 1: The 3/4 rule is too stringent.

Major Problem 2: The Article, as written, gives the states the power to stall. Like college basketball, the states need a shot clock. Often the Congress, in proposing an Amendment, gives the states a time limit. The Congress has no constitutional authority to do this and the states are free to ignore the time limit, which they often do. The Founding Fathers did not include a time limit because people in that time were generally honorable and when presented with a question would act upon it. The framers of the Constitution did not foresee all the weasels that are presently elected to state and national offices that are afraid to stand up and be counted on an issue because they may offend some group of voters.

Why is this so important? Presently it is almost impossible to amend the Constitution. This gives the government another excuse for ignoring it. We see what has happened over the last 85 years when Congress and the President ignore the Constitution and the courts allow this to take place – a legal impetus to the rise of socialism.

———-

The Convention of States is an effort by a group of concerned citizens to call for a Constitutional Convention to amend the Constitution. While the U.S. Freedom Army supports and applauds their efforts we feel that the task is quite daunting and the required 34 states needed to call for such a convention will be extremely difficult to attain. Having said all of that we hope they succeed.

If they do succeed they should concentrate on Article V only and not make any other constitutional changes. Without going into a lot of detail the items we noted above should be addressed and the 3/4 requirement should be changed to 2/3. It should be constructed so that 2/3 of the state legislatures can amend the Constitution unilaterally. Without going into a lot of detail about the nuts and bolts of how this should be done, this is necessary as a check on the overreach of the federal government.

This new Amendment would look something like this:

Section 1. Article V. of the Constitution of the United States of America is repealed.

Section 2. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution. The Legislatures of two thirds of the several states must ratify those Amendments for them to become law. 

Section 3. Any State may propose an Amendment to the U.S. Constitution when approved by 2/3 of its legislators. These Amendments shall be valid as Part of this Constitution, when ratified by the Legislatures of two thirds of the several states. Individual states will have one year to ratify or refuse to ratify Amendments as proposed to them. Failure to act one year from the date of submission will mean that the state has approved the Amendment.

Section 4. Any Amendment may be enacted immediately and be in force until the ratification process is complete if the President of the United States and at least seven members of the United States Supreme Court agree to the Amendment as proposed. No Amendment under this section may nullify the powers of the states listed in this Amendment.

Section 5. The Legislatures of the individual states must only be in the majority to ratify Amendments. Other than this requirement, individual states may select any other reasonable processes for ratification.

       


24 Responses to "Article V of the U. S. Constitution & the Convention of States"

  1. Hmm, I think you have written a thoughtful post that can be refuted easily.
    Minor problem 1: Way 2 may well never happen. Wrong. We are over 1/3 of the way there, and there are still states that will pass in 2017. By 2018, we will have the 34 states. Never say never.
    Minor Problem 2: How state legislatures approve amendments is not subject to judicial review. Say huh? Why would you want them to approve? This is all about LIMITING the scope and jurisdiction of the federal government.
    Minor Problem 3: The Article does not confer any emergency powers so that an amendment may be adopted until acted upon by the states. None are needed. As soon as the convention concludes the commissioners come home and there is a vote on the amendments. Look, you have to do this lawfully. If a state has waited this long to have their amendment then they don’t need emergency powers.
    Major Problem 1: The 3/4 rule is too stringent. We must adhere to the Founders direction on this. 13 states can defeat any amendment. Unless an amendment is bizarre that will not happen. If it is bizarre I probably want it defeated.
    Major Problem 2: The Article, as written, gives the states the power to stall. Congress has no contribution in an Article V COS. They call the convention and that is that. Each convention committee, each state delegation is chosen by the state legislature as each state legislature directs. This means that each member of the convention is recallable by the state legislatures. They are also under instructions from the state legislature. Go here to read about the first seven commisions and the commissioners in the National Archives. There was no runaway convention. https://www.ourdocuments.gov/doc.php?flash=false&doc=9

    • In CA, CoS would be a disaster, above and beyond the disaster our state government already is. The Communist socialists rule, have elections rigged and stacked against any and all patriots, not to mention the 9th district court. What’s the answer to counter all this? In CA, we aren’t even assured our vote is counted.

      • I understand your concern and consternation – I used to live in CA (northern and southern, over a 10-year span) and I’m not a fan. It’s called the land of fruits and nuts for a reason! (present company excluded) The way Article V is structured, CA can’t ruin the outcome. While the voting result of CA (alone) is predictable, the wonderful aspect to a CoS is that representation is similar to the electoral college and the outcome is not ruled over by the “big states” – Commissioners (chosen by each State) from each State propose, discuss, and vote on amendments to the Constitution. Amendments the convention passes by a simple majority will be sent back to the states for ratification. Each state has one vote at the convention. Thirty-eight states must ratify any proposed amendments. Once states ratify, the amendments become part of the Constitution. The other concerns you raise are precisely why the USFA is SO necessary right now – we need to inform/educate people what the Constitution actually says, and show them how far we’ve devolved from the form of government our nation’s founders gave us. Once they can clearly see the differences between the government we were given and the government we now have, people will vote to change it. If you haven’t stepped up to a leadership position in the USFA, contact us so we can plug you in. You can also give! We need donations to keep us running.

      • There most definitely has been a runaway convention, which is how we came to a complete rewrite in Philadelphia 1787 effective 3/1789. They used the article 5 to completely throw out the first written constitution and start again, they chose less people to ratify and submit amendments but it was still our founding fathers who in the 10 years had found some issues that needed to be cleared up. They are no longer with us and who we have now are not to be trusted. The states can call for the convention but OLNY congress shall create and pass a law .I agree with DRL not just for CA. but almost all the states right now. We the people just need to demand that the overreach be stopped. There are 3 groups that advocate for an article 5 convention and one of them is open about a runaway convention saying ” its about time to have a new one anyway” Wolfpack.

        • This was not a “runaway” convention, Sherry, and it wasn’t called under the authority of Article V (which didn’t exist at that time b/c the Constitution didn’t exist at the time). The Philadelphia Convention was called specifically for the purpose of re-examining and re-writing the Articles of Confederation and Perpetual Union, the original document under which the 13 united colonies were being governed. While in session, the delegates agreed that amending the Articles would prove insufficient to govern the nation effectively and the decision was reached to craft an entirely new Constitution. Delegate James Madison proposed the Virginia Plan, which was adopted by vote and then further amended to ultimately reflect the document that remains in force today (with certain amendments along the way). Runaway? Hardly. And it wasn’t our original Constitution that was being changed, it was the Articles of Confederation. The Articles were abandoned and the resultant document became our Constitution.

    • Okay, here we are in 2018 – so how’s that “34 states” thing going . . .? I concede that we “may” get to that number, but with the Leftists becoming more shrill and demanding everyday that our unalienable rights be given up, I fear that we will instead find ourselves in armed conflict across the nation to put down the Socialist agenda long before we get to that final number.

      Related to Minor Problem 2: There is no judicial review, and I agree that there should be none; the idea posited by the author of the original post is that each State’s legislature governs the approval method for amendments. Let’s say one State says a 2/3 majority; another says simple majority; but one (or several) say 3/4 (or more) because they don’t like the proposed amendments. If Article V spelled out exactly what approval method every State must use, then we have no ambiguity between States and no tomfoolery.

      Minor Problem 3: Let’s say a growing number of local governments adopt and enforce legislation to confiscate guns and ammunition from their citizens. A (relatively) quick Article V is conducted affirming the 2A and its inviolability, but now we have to wait for the States to approve? Why not invoke an emergency clause that enforces the newly proposed (not adopted) amendment to thwart the Socialist agenda to confiscate arms? A hypothetical situation such as this is why the author proposed rewriting Article V with this emergency provision.

      Major Problem 1: IMHO the 3/4 rule is too stringent, and changing it to something less makes sense in the overall process of Article V. There is little chance that a “bizarre” amendment will make it out of the convention, given how the convention is constructed and its rules for operation. Once done, the 3/4 rule for approval has historically taken WAY too long; a shorter time to adopt is prudent, since it reflects the sense of the majority of the governing body at the Convention.

      Major Problem 2: As stated by the author, this problem is likened to a “shot clock” (think college basketball) limiting the time that a State can delay action on any amendment. The solution fits nicely with the proposed smaller approval percentage. —> Note that from the Philadelphia Convention that gave us our Constitution, the States had all ratified the new governing document by the next year (1788) but NC and RI dragged their feet until 1789 and 1790, respectively. Had not the Continental Congress resolved to put the new Constitution into effect with only 11 States as signatories in September, 1788, the country would have been shackled to its old governing charter for another 2 years. Had there been a “shot clock” this potential delay could have been avoided altogether.

      Final note – the author did not suggest these changes to Article V as a condemnation of its current structure. He intended to relay some of the potential limitations that he saw, and then proposed alternatives to the current structure. As he notes in his original posting, while he was unsure of the success of the current effort calling for an Article V, he and the USFA wish those supporting such a move God speed and success!

  2. I will not harp on a lot of the merits already explained by Robyn Campbell. This process is a very straight-forward, as it is the same process as if Congress would meet to propose amendments. The only difference is that in this portion of the Art. V process, the States meet at a Convention to propose amendments, not re-write the Constitution. The ratification process is the same.

  3. Robyn clarified the problems, so I will not elaborate any more on them. Only flaw I see is that you say that the Convention of Stgates is calling for a constitutional convention. That is untrue. The correct term is convention for the purpose of proposing amendments to this constitution. Major difference.

    Constitutional Convention is for rewriting an old or coming up with a new constitution.
    Convention for proposing amendments only proposes amendments to the constitution, which has to be then ratified by 3/4 (or currently 38) states.

  4. Minor Problem 3: The Article does not confer any emergency powers so that an amendment may be adopted until acted upon by the states. This action could be necessary under certain conditions.

    I cannot think of any situation where it would be necessary to amend the Constitution without the two thirds required?

  5. The previous posts well articulate objections to the author’s Article V proposals. If the Convention Of States (COS) organization is successful in implementing a COS under the provisions of Article V then, ipso facto, it works just fine. No reason to change it.

  6. The Articles of federation which preceded our constitution had a 100% buy in to enact changes to the articles.
    Which is why some say our constitution is not valid, because it was implemented before all of the States ratified it.
    Our constitution reduced the required from 100% to 75% in an attempt to allow future changes but strict enough to assure it couldn’t be changed on a whim.
    Many proponents of an Art. 5 Convention Of States say that since the government isn’t abiding by the Constitution that we need to change the Constitution…..Which itself is a nonsensical statement. If the government is not abiding by the Constitution, changing the Constitution will not make any difference at all. The government will simply continue to ignore the Constitution.
    The only solution to the government over steeping it’s constitutional boundaries is to educate the people and to vote against those politician who are not upholding their oath to the Constitution.

    https://www.facebook.com/groups/1438147636274936/

  7. “Fear is the foundation of most governments; but it is so sordid and brutal a passion, and renders men in whose breasts it predominates so stupid and miserable, that Americans will not be likely to approve of any political institution which is founded on it.” – John Adams, Thoughts on Government, 1776. There is noting to fear from a Convent of States Amending Convention, but would be much to fear from a Constitutional convention which is why the opposition keeps using the word Con Con. Please educate yourself. https://www.youtube.com/watch?v=oVQH0JbwIgA

  8. Congress needs term limits by convention of states.12 years as a Congressman is plenty in either chamber.Our elected in Congress are failing the people everyday.Time to humble them.www.termlimits.com

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  10. Hi,my name is Kelley DeRoche. I am disabled and willing to do whatever I can to reverse and return our GREAT COUNTRY to it’s proper GLORY!I’m so happy to have found you all! GOD BLESS YOU AND ALL AMERICAN’S!

    • We’re SO glad you joined us, Ms. DeRoche! You can help in numerous ways, including forwarding our various reports and action emails to friends to get them involved in the USFA, too. Recruiting others to join, whether in person, by phone or email, is vital to our growth. So, too, is giving – any donation, regardless of size, helps the USFA immensely! And, if your disabilities allow, engaging in our Call to Action when it comes out (usually each month) is critical to the USFA’s success.

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