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Thorner: Article V: Are there flaws in our Constitution, or simply failures to obey it?



Article V_0

By Nancy Thorner - 

Article V of the U.S. Constitution has only 22 words about a convention for proposing amendments, but the most important is the word “call.”  Since only Congress can “call” the convention, it means that states have no control over who can be a delegate, who makes the rules, who sets the agenda or who wields the gavel.
Many on the left and the right are working together to rewrite our 1787 Constitution, that magnificent and precious document, the fountainhead of our unparalleled American freedom, independence, and prosperity which secured our God given unalienable rights. They believe that changing our Constitution or adding amendments will force politicians to obey it.  With that premise, since few obey the 10 Commandments, should we change them as well?

If the problem is that politicians do not obey the current Constitution, then writing a new one is no solution to that problem. Politicians who ignore the current Constitution would ignore a new one, unless of course it allowed them to do as they please and then they’d follow it.
The dangers are many, and euphemistic sounding reasons for another Convention convince constitutionally uneducated citizens of the need for a Balanced Budget Amendment (BBA).  Few Americans have read the actual BBA bill, which would change our constitution and legalize the already unconstitutional spending by Congress, and when Congress couldn’t meet the budget because of their spending, they’d simply raise taxes on the American people.  The Constitution lists the enumerated powers by which Congress is limited in its spending, the BBA Amendment changes those enumerated powers.
Two Methods for Proposing Amendments

Article V of the Constitution includes two methods for proposing amendments.  The first and only method used for 27 amendments thus far empowers Congress to propose an amendment, “whenever two thirds of both houses shall deem it necessary.”

The second method for proposing amendments, which has never been used since the original 1787 Constitutional Convention (Con-Con), is through a convention called by Congress “on the application of the legislatures of two thirds of the several states.”  Once 34 state applications are received, Congress is bound to “call a convention for proposing amendments.”

Article V tells of two modes of ratification.  The amendments proposed by Congress or at a convention, can only become part of the Constitution once they’ve been “ratified by the legislatures of three fourths (38) 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.”

Advocating Constitutional Change

Conservatives, such as Mark Levin and Sean Hannity, who advocate for a Con-Con fail to understand that once Congress convenes a convention, it cannot be undone, and no predetermined rules or limitations, adopted by either Congress or the states will have any bearing on what the convention delegates may choose to do or propose. Link The delegates would have free latitude to propose any changes they see fit, including the writing of an entirely new constitution, along with changes to the mode of ratification, in order to guarantee the adoption of their amendments.  It would be a runaway convention and it is not without historical precedent.

Throughout American history there have been those who wish to rewrite our U.S. Constitution. Link  In 1943, it was a Chicago lawyer for Marshall Fields and Time, in the 1960s it was Senator Everett Dirksen, and we came close to a convention in the late 1980s.  Now in the 21st century we are again faced with those on the left and right advocating for another convention.

In his book, Six Amendments: How and Why We Should Change the Constitution, (2014), former Supreme Court Associate Justice John Paul Stevens, who wrote the dissenting opinion in the Supreme Court’s Citizens United case, proposes to change the Second Amendment to read:

“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.”

The addition of these five words essentially allows for the criminalization and disarming of homeowners and law-abiding citizens.

Stevens, appointed by Gerald Ford, would also change the First Amendment to limit political speech, change the Eighth Amendment to forbid the death penalty, and change the Tenth and Eleventh Amendments to end sovereign immunity for the states and absolute immunity to state and local elected officials when they don’t follow federal laws.

Warnings from Statesmen

On November 2, 1788, James Madison, the Father of our Constitution, wrote a letter to G.L. Turberville when he was asked how he felt if another General Convention should be called.  Here is a portion of his letter, written only a year after the 1787 Constitution:

"An election into it would be courted by the most violent partizans [sic] on both sides; it would probably consist of the most heterogeneous characters; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric.

Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America, and under all the disadvantages I have mentioned."

In Federalist No. 49, Madison warns against a convention to correct breaches of the Constitution. He said the legislators who caused the problem would get themselves seats at the convention and would then be in a position to control the outcome of a convention.

In Federalist No. 85 (last paragraph), Alexander Hamilton said he “dreads” the consequences of another convention because the enemies of the Constitution want to get rid of it.

Our first US Supreme Court Chief Justice John Jay wrote that another convention would run an “extravagant risque.” (obsolete spelling of risk)

US Supreme Court Justice Arthur Goldberg reminds us in his September 14, 1986 editorial in The Miami Herald that at the convention of 1787, the delegates ignored their instructions from the Continental Congress and instead of proposing amendments to the Articles of Confederation, wrote a new Constitution; and that “…any attempt at limiting the agenda would almost certainly be unenforceable.”

US Supreme Court Justice Antonin Scalia said on April 17, 2014 at the 1:06 mark of this video.

“I certainly would not want a constitutional convention. I mean, whoa! Who knows what would come out of that?”

Convention supporters ridicule these warnings as “fear mongering.” And they quote law professor Scalia in 1979, before his decades of experience as a Supreme Court Justice, to “prove” otherwise.

Any intelligent person must seriously consider these warnings from these brilliant men. James Madison, Alexander Hamilton, Justice Jay, Justice Goldberg, Justice Burger and Justice Scalia understood the plenipotentiary powers of delegates to an Article V convention.

The Historic and Dangerous Legal Precedent

The only historic precedent for a Constitutional Convention occurred in 1787.  The 55 attending delegates were tasked with the “sole and express purpose of revising the Articles of Confederation (AOC).”  Article XIII of the AOC stipulated that “any alterations” made to them must be unanimously “confirmed by the legislatures of every State.”

Both these mandates were exceeded.  The delegates chose to replace the Articles with an entirely new federal Constitution.  They altered the mode of ratification from being “confirmed by the legislatures of every State,” in Article XIII of the AOC, to “the legislatures of three fourths of the several states, or by conventions in three fourths thereof,” in Article V of the new Constitution.  On September 13, 1788, with only 11 of the 13 states having ratified the new Constitution, the Continental Congress passed a resolution that it “had been ratified.”  The new Constitution replacing the AOC was adopted before being “confirmed by the legislatures of every State,” as Article XIII required.  With such precedent, who can say this will not happen again?

The 55 attending delegates to the 1787 Convention

  1. a) ignored their pre-set limited agenda;
  2. b) trashed the entire existing government;
  3. c) wrote a new constitution; and most important,
  4. d) (to assure adoption of their new constitution), they ignored existing ratification requirements, wrote new ones, and used the new rules to bypass the state legislatures.

A second Con-Con hasn’t been held in 231 years because of what happened in its only historic precedent. There is nothing to stop a second convention from doing everything the first did.

Tactics of the left are being used to try to pass a “Convention of States",  funded by secret donors who have hidden agendas. There are wealthy globalists who do not like our Constitution for many reasons.

The first thing liberals would do in an Article V convention is to attempt to repeal the Second Amendment, with additional attempts to insert into the Constitution a right to taxpayer-funded abortion and gay marriage.

Progressive Education

It’s interesting to note that these folks pushing another convention often refuse to debate those who know the historic precedents and documents of our founders, but when they do, they always end up failures in the public forum.

We must realize that progressive education has destroyed academic education, and it happened long ago, other than in a few hundred private schools and among home schools, academic teaching is gone.  Eliminating the US Constitution and American history from education started in the late 1960s.

Progressive education does not believe in moral, religious or cultural absolutes, but rather only believes in questioning those absolutes and replacing them with relative truths, i.e., convenient lies. Indeed, we need to consider whether the proponents of progressive education have always been “intending to make a clean sweep of traditional values and start with a new set,” as C. S. Lewis put it in his 1943 book, “The Abolition of Man.”

America is shifting from a nation governed by a Constitution to a nation governed by an agenda. What the agenda is should matter to people who love their freedom.  It doesn’t matter whether Republicans or Democrats are in power, the agenda keeps moving forward either way, directing us all toward what is touted as a more “enlightened,” a more “socially conscious,” and a more “open and tolerant” society. Link

Unfortunately, our children are learning nothing of freedom and liberty, our heritage or Constitution, what they are learning is a socialist agenda.


The folks responsible for the Constitution were idealists, but they were also pragmatists.  They understood the shortcomings of people, and they didn’t exclude themselves.  That’s why they made it possible to amend their divinely-inspired conclusions.  But as you may have noticed, they made it a very difficult process.  They understood that changing times would call for certain adjustments, but they also understood human nature and understood that a nation, just like an individual, will go through phases.  They didn’t want to allow their work to be undone because the nation was undergoing a temporary loss of sanity, as might occur during a war or when a would-be tyrant was elected.

Those who don’t trust the system to self-correct keep calling for a Convention of States.  It is beyond me to imagine how they believe that a gathering of representatives from 50 states could improve on the 535 representatives we already have on salary in the House and Senate.

I mean, if those people can’t agree about term limits, a balanced budget, a sensible immigration policy, or limiting the power of the federal government, how can we expect better of these unelected individuals representing the 50 states?


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  1. This article is wrong on several points.
    First, Amendments must be ratified by 38 of the State legislatures. If only 13 legislatures vote to not ratify, the amendment fails.
    Second, how delegates are selected and how many are allotted to each state is a moot point. Since this is a Convention of States, only the State itself votes. The vote of California is no more important than the vote of California.
    A Balanced Budget Amendment must be carefully crafted if it has any hopes of being ratified and becoming part of the Constitution. The ratification process ensures that a blank check to Congress is not rammed down our throats.
    Speaking of Congress, what about term limits? Is it OK with you that 90% of all Congressional incumbents are re-elected. Is it OK with you that politicians like John McCain are in office for over 30 years. Is it OK with you that the average Senator or member of the House spends at least 50% of his or her time raising money for the next re-election campaign?
    For more on this subject I recommend “The Liberty Amendments” by Mark Levin

  2. Only a fool would support a COS. Its far too dangerous. Our US Constitution already limits how much the federal govt can spend and what they can spend it on…. but the feds ignores it limits, just what makes you think a BBA will govt federal govt overreach? If the federal govt could be trusted no one would be asking for a COS.
    I am absolutely opposed to career politicians in DC and in Illinois for that matter but we don’t have to use a COS to term limit dc politicians. The people can demand it and if they refuse we can vote them out until which time a proposed term limit amendment passes and the voters have a chance to vote on it. Everyone should demand a term limit amendment. Govt is the servant, the citizens have the power

  3. I respect Nancy, but she is completely wrong on this issue and I am disappointed in her portrayal of an irrational fear of a constitutional means to amend our Constitution. A Convention of States cannot go rouge. It is not possible. First, the state legislatures select their delegates and can recall them at any time. Second, the amendments must pass 3/4ths of the states to ratify. This is no different than if congress passes an amendment and sends it to the states for ratification. I am no more concerned about the states amending the Constitution than any of the recent congresses. In fact, I believe congress and the regulation branch of the federal government are amending our Constitution with many of the unconstitutional acts as of late. I don’t think congress will ever put restrictions on itself with a Balanced Budget Amendment or term limits. I do believe that states have the right and the ability to do so, and so did the Framers. A Convention of States is not a ConCon. It is a safe way to amend our Constitution in ways our feckless congress will not. It is a positive check on an ever growing federal government.