I have often heard from people I deeply respect that it is untenable to amend the Constitution through an Article V Convention of the states because the federal government doesn’t respect current constitutional limitations to begin with. Considering this, their argument holds that new amendments would be unavoidably ineffectual and feeble. While this is a compelling argument, in my assessment there are some misconceptions with this sweeping assertion.
I think it’s safe to declare that few within the liberty movement don’t believe the Constitution is “pretty good.” In my estimation, it is the best republican framework that has been created for a league of states. Nonetheless, it is hard to argue that in the last two hundred years, there are aspects of the Constitution that have made the original document lose some of its inherent advantages when it comes to the preservation of liberty. There are also opportunities for old prose, including clauses which are constantly reinterpreted by federal courts today, to be summarily clarified.
Realizing that the Constitution did not specify enough limitations, some of the prominent founders even desired to amend the Constitution in their own time. In 1798, Thomas Jefferson wished for what we would call a “balanced budget amendment.” If adopted it would have become the 12th Amendment. Writing to John Taylor, Jefferson elucidated:
“I wish it were possible to obtain a single amendment to our Constitution. I would be willing to depend on that alone for the reduction of the administration of our government; I mean an additional article taking from the Federal Government the power of borrowing.”1
Jefferson’s contemplations should not be mistaken as hostilities toward the ratified Constitution, and Jefferson certainly didn’t believe the document brought about an ineffective governmental model. That did not mean it could not be improved.
The argument that government doesn’t acknowledge any facet of the document is actually not so definite to me. The federal government does willingly retain structural factors of the Constitution such as the bicameral legislature, women’s suffrage, abolishment of the 18th Amendment, etc. The constitutional amendments I support are that as drawn up at www.compactforamerica.org (an effort spearheaded by Nick Dranias), and they ingeniously provide a structural remedy that is not easily violated by governmental neglect. These amendments also provide for an interstate compact vehicle to enforce the amendment rather than expecting the federal government to defer sovereign power voluntarily. The states and localities become its enforcers, and this methodology acts to discard federal negligence.
A state convention isn’t an “extreme remedy,” it was one of the two natural courses for addendum and adjustment, one that Roger Sherman, George Mason, James Wilson, and Edmund Randolph wanted us to have. Their reasons for supporting this method during the Philadelphia Convention of 1787 were undoubtedly persuasive, evident by the notes kept by Robert Yates and James Madison. If the federal government was the problem, the states appropriately had the power to fix it.
James Madison’s notes from the Philadelphia Convention illustrate Mason’s argument:
“Amendments therefore will be necessary, and it will be better to provide for them, in any easy, regular, and Constitutional way than to trust the chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.”2
Roger Sherman from Connecticut suggested a course of action that would satisfy the concerns of Mason and others. Once described by Thomas Jefferson as a “man who never said a foolish thing in his life,” Sherman moved to add the article “or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.” James Wilson moved to insert “three fourths of” before “the several States,” which was agreed upon.3 Sherman and Wilson were instrumental in addressing the concerns of Mason and others, who realized that the states, as parties to the compact of the Constitution, should have the most power over the mechanism of alteration.
The parties to the compact (states) need to maintain some kind of recourse to malicious action by the federal government. The misconception people sometimes make is when they consider a convention of states to have the power to “hijack” the Constitution. All Article V gives the states the ability to do is recommend amendments. Amendments still require ratification of 38 states to become codified and added into the Constitution. If these individuals truly fear a “runaway convention,” that’s exactly what occurred in Philadelphia in 1787 and produced our current Constitution, which they vigorously defend (and I can’t blame them for doing so).
These sentiments do not mean I agree with everything in Mark Levin’s recent book The Liberty Amendments, the sales and commendation of which have brought this issue into the forefront of constitutional discussion. While Levin makes some excellent points and correctly draws upon the Philadelphia Convention as the source of this mechanism, some of his proposed amendments fall short of being considered desirable. In fact, one of such amendments would categorically legitimize a defined income tax of 15%, making efforts to revoke the 16h Amendment even more difficult and problematic.
State legislators are undeniably more able to preserve the powers of the states and to hold officials accountable to amendments the states have introduced and passed. Such text would give such legislators immeasurable political capital to do so, and continued abridgement would sway a larger amount of the public to support such limitations.
I find no disagreement in the notion that the culture of unconstitutional government also needs to be changed. The fact that the Constitution is not self-enforcing is inarguable, and politicians must still be held to current Constitutional limitations. Considering and utilizing these two paths of civic improvement need not be mutually exclusive, however. An Article V Convention of the states is just one means to make governmental limitations more explicit and overt. Since I am an avid supporter of nullification efforts, I cannot claim it is the only way to hold officials accountable to the confines of the Constitution. It is just one means, not an end.
I believe Mason, Randolph, Wilson, and Sherman were correct in their view that such a convention is the superior way to amend the Constitution, rather than relying upon the federal government to be the sole body to propose amendments. The federal government will always retain the ability to produce amendments whether or not we debate, entertain, or reject the notion of a convention of states. The states are simply more inclined to introduce liberty-minded ones. As long as the Constitution contains the 16th and 17th Amendments, uses the Commerce Clause to suppress and inhibit intrastate commerce, and applies the 14th Amendment in a highly regulatory fashion upon the states outside of court cases, the Constitution plainly requires amending even though it is already a good governmental model.
- Thomas Jefferson to John Taylor, November 26, 1798, in Thomas Jefferson, The Writings of Thomas Jefferson: Correspondence, Edited by Henry Augustine Washington (New York: Derby & Jackson, 1859), 260. ↩︎
- James Madison, Notes of Debates in the Federal Convention of 1787 (New York and London: W.W. Norton & Company, 1987), 104-105. ↩︎
- Ibid, 610. ↩︎
