Monday, 26 May 2014 08:00

Is a Runaway Article V Convention a Myth? 1787 Proves Otherwise

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Is a runaway constitutional convention impossible?

Proponents of utilizing Article V of the U.S. Constitution to convene a convention of states to amend the U.S. Constitution claim that a well-worded resolution by state legislatures would not go awry because such a runaway convention is “unprecedented.”

Nick Dranias of the Goldwater Institute — one of the more energetic proponents of an Article V convention — published an on-line pamphlet called “10 Facts to Rebut the Mythology of a Runaway Convention.” His leaflet is pretty typical of the argumentation addressing skeptics of a constitutional convention. It insists:

There is zero precedent that any convention of the states has ever “runaway” from its assigned agenda. There have been 12 interstate conventions in the history of our country. All of them stayed within their stated agenda. Even the Constitutional Convention of 1787 was not convened to “amend” the Articles of Confederation, but to “revise” and “alter” the Articles to establish an effective national government. This was fully consistent with the Articles of Confederation because the Articles authorized alterations — a term that had revolutionary significance because it echoed the language of the Declaration of Independence.

The reality could not be further from the truth. Most of the 12 interstate conventions mentioned by Dranias were small regional assemblies of a handful or fewer states, or regional military conventions during the War for Independence from Britain. They involved only a few states and were convened at a time when the nation was less interested in new constitutional governance than military survival. But the 1787 convention was clearly a “runaway convention” in the sense that every single state delegation that had restrictions imposed on its delegates by their state legislature violated those instructions. 

The point is key to understanding how constitutional conventions would operate today, even if nearly every American is grateful that the delegates in 1787 ignored their state's instructions. However, most politicians who would become delegates today would not likely be conversant in Montesquieu's theories of separation of powers or John Locke's idea of natural law as were James Madison, Elbridge Gerry, and George Mason. Indeed, today there are vigorous, outright moves by the political left to repeal the freedom of speech and press (protected by the First Amendment) and abolish the right to keep and bear arms (Second Amendment) by means of an Article V convention.

In 1787, only two states — New Jersey and North Carolina — sent delegates to Philadelphia without any restrictions on how they could revise the national government. All the other 10 states sending delegates (Rhode Island didn't send any) put restrictions on what kind of government their delegates could design.

New York and Massachusetts limited their delegates to “revising” the Articles of Confederation only, and both Massachusetts and Delaware restricted their delegates from amending the rule under Article V of the Confederation that guaranteed each state the right of vetoing constitutional changes and the right to recall congressmen.

New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, South Carolina, and Georgia put only one restriction on their delegates. These seven states simply required that the new Constitution would have to be ratified by the “several states” before going into force, a term of art referring back to the Confederation Constitution that meant ratification by all 13 states who were then members of the Confederation. The Confederation's Article 13 stated of amendments to the Articles of Confederation:

nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

Of course, the Constitution that emerged from the convention of the states in 1787 respected none of these restrictions by state legislatures. The Confederation was not “revised”; it was thrown in the historical dumpster. The Congress of the Confederation did not approve the 1787 Constitution, nor did all 13 states ratify our current U.S. Constitution before it was put into force. Rhode Island didn't ratify the U.S. Constitution until May 29, 1790, almost two years after the Constitution took effect, and after a congressional election, the election of President Washington, and passage of the Judiciary Act setting up the U.S. Supreme Court, the first tariff act, and other legislation. 

The delegates in 1787 merely threw the rule of unanimity enshrined in America's first national Constitution into the dumpster and wrote new ratification rules in Article VII of the new Constitution (which said three-fourths of the state legislatures or state ratifying conventions was sufficient).

A new convention would be empowered to do precisely the same thing in revising the ratification procedures enshrined in the current Constitution: Delegates could proclaim them ratified after adoption by a mere majority of state legislatures or even by a national popular vote. 

The history of the 1787 convention proves that the American Legislative Exchange Council (ALEC) is wrong in stating that “there are far more political and legal constraints on a runaway convention than on a runaway Congress.” Unlike the arduous procedures under the current U.S. Constitution, a convention can write the ratification procedures to fit what they expect will be approved. In other words, the convention could lower the bar to the point to where proponents would be guaranteed to be able to jump over it. 

Some proponents of a constitutional convention, the Compact for America group, hold out hope that imposing oaths upon delegates to follow their preferred restrictions would work. But, the virtue of fastidious delegates who steadfastly hold to the restrictions imposed upon them by their states may actually help a convention veer off the tracks and become runaway. Consider that in 1787 New York delegates John Lansing and Robert Yates left the Philadelphia convention in protest when the convention exceeded the mandate of the New York legislature's resolution. But all their departure did was free up Alexander Hamilton — who had no such legalistic scruples — to adopt the Constitution for New York as the state's lone remaining delegate.

This is not to imply that the 1787 Constitution is “illegal” or that the American government today lacks legitimacy. To the contrary, the states have always held complete sovereignty — in the words of the Declaration of Independence — “to alter or abolish” government at a convention, whether that convention is the Continental Congress in 1776, the 1787 Philadelphia convention, or one convened under Article V of the U.S. Constitution today.

The real question before going to a constitutional convention under Article V today is this: Do Americans trust politicians nominated by state legislatures today to keep to their instructions more closely — or to draw up a better system of government — than those nominated by the state legislatures in 1787? Organizations such as ALEC and people such as Nick Dranias clearly do have that trust, while constitutionalist skeptics such as The John Birch Society and Eagle Forum do not see our current crop of politicians as more enlightened than the Founding Fathers.

Related articles:

Working Together to Rewrite the Constitution

Nullification vs. Constitutional Convention: How to Save Our Republic

Additional resources:

For more information about the risk of a constitutional convention today, go to The John Birch Society's information page here.

Stop a Constitutional Convention

4 comments

  • Comment Link Dennis Tuesday, 27 May 2014 17:44 posted by Dennis

    Evidently those of us, conservatives, that are for an Article V Convention of States feel that our American situation is more dire than those of you who really believe that our electoral process is not corrupt beyond repair, and that our federal government is not tyrannical and out of control.

    Yea, that's right. Just keep voting and everything will get better. Right.

    Our Constitution was intended as a living document.

  • Comment Link Thomas R. Eddlem Tuesday, 27 May 2014 15:02 posted by Thomas R. Eddlem

    Mr. Dranias chose not to contest the central thesis of my piece above, that most of the state legislatures placed a few restrictions on their delegates at the 1787 convention and that in 10 out of 10 states where even these minimal restrictions were placed on delegates, all 10 state delegations chose to ignore their instructions.

    Dranias proclaims that the 1787 convention couldn't have been a runaway convention because “the Articles were already breached and not binding.” Interestingly, Dranias quoted the Articles as “not binding” just four sentences after citing the resolution of the Articles Congress as giving legitimacy to the 1787 convention.

    I don't pretend to know what Dranias means by the Articles being non-binding, as it was inaugurated as a means of “perpetual union” (language which is not in the current Constitution), but I do recall speaking with him at a 2011 Harvard convention (http://www.thenewamerican.com/usnews/constitution/item/8055-harvard-confab-fails-to-convince-tea-party-to-seek-constitutional-convention) sponsored by Lawrence Lessig where he intimated there was little left of our current U.S. Constitution. Regardless of whether he still holds this pessimistic view, I expect delegates to an Article V convention today would say of our current constitution that “it's already breached and not binding.”

    Dranias' “Compact for America” relies heavily upon delegates following instructions from state legislatures, as do other moves for an Article V convention, and the history of such conventions of the states – whether it is the Continental Congress in 1775-76 or Philadelphia in 1787 – reveals that delegates follow their own political preferences far more often than the instructions from their state legislatures.

  • Comment Link Nick Dranias Tuesday, 27 May 2014 09:51 posted by Nick Dranias

    I'm sorry, but this analysis is wrong.

    First, read Federalist No. 40, in which James Madison explodes the arguments made that the Philadelphia convention's scope was exceeded.

    Then, actually read the final, approved congressional recommendation, which says: “Whereas there is provision in the Articles of Confederation and perpetual Union for making alterations therein by the assent of a Congress of the United States and of the legislatures of the several states; and whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the states and particularly the state of New York by express instructions to their delegates in Congress have suggested a convention for the purposes expressed in the following resolution and such convention appearing to be the most probable mean of establishing in these states a firm national government. Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of government and the preservation of the Union.”

    Then read the actual, final state commissions instructing the delegates to the Philadelphia convention here: 3 Records of the Federal Convention of 1787 706-36 (M. Farrand ed., 1911).

    All but New Jersey's matched the broad language of the congressional recommendation.

    You don't have to be James Madison or Daniel Webster to make the case that the Constitution fit squarely into this agenda. The ratification requirement in the Articles was different than the ratification requirement for the Constitution, but the Articles were already breached and not binding. Further, the Constitution did not take effect in any non-ratifying state and all states ultimately ratified it.

    The runaway convention claim about the Philadelphia Convention is a myth.

  • Comment Link laura Tuesday, 27 May 2014 00:59 posted by laura

    A5 convention proponents say amending is not the same as revising and altering. They also call an A5 convention to propose amendments a convention of states or an interstate convention. They vehemently deny that an A5 convention is a Constitutional convention. It is also one of their assertions that it is impossible for an A5 convention to do anything other than propose amendments. It's semantics and inaccuracies.

    Previous interstate conventions were not A5 conventions to propose amendments. There has never been an A5 convention to propose amendments. This convention process is different than the one under the Articles. I've read the arguments in the Federalist Papers denying that the convention 'ran away.'

    Really, all the word games, denials, and assurances don't matter. The power of a delegate to an A5 convention to propose amendments is unlimited. The state legislatures - if they are even the ones who choose the delegates - can TRY to limit the delegates authority, try to limit the subjects of the amendments. They can't. The only way to stop a run-away convention is by force.

    In appointing delegates, the citizens of each state act in their highest authority as sovereign individuals. Our unlimited power to form our own government is transferred to those delegates. When the convention doors close, the delegates can do anything. Write a new constitution AND a new ratification process that completely bypasses the states and the People.

    I am concerned by the refusal of the A5 convention advocates to admit this.

    I read an article today that got my 'tin foil hat' thinking revved up into over-drive.

    "President Obama is taking a swipe at the Founding Fathers, blaming his inability to move his agenda on the “disadvantage” of having each state represented equally in the Senate.

    At a Democratic fundraiser in Chicago Thursday night, Mr. Obama told a small group of wealthy supporters that there are several hurdles to keeping Democrats in control of the Senate and recapturing the House. One of those problems, he said, is the apportionment of two Senate seats to each state regardless of population.

    “Obviously, the nature of the Senate means that California has the same number of Senate seats as Wyoming. That puts us at a disadvantage,” Mr. Obama said.

    The president also blamed “demographics” for the inability of the Democratic Party to gain more power in Congress, saying Democrats “tend to congregate a little more densely” in cities such as New York and Chicago. He said it gives Republicans disproportional clout in Congress.

    “So there are some structural reasons why, despite the fact that Republican ideas are largely rejected by the public, it’s still hard for us to break through,” Mr. Obama said."

    So, he's saying the actual structure of the government is why dems can't 'break through' and advance obama's agenda. The structure allows the republicans to have an unfair advantage. The Country rejects the ideas of the right, but poor dems can't do anything because this outdated and racist document prevents them.

    Why? Why now? Why zero in on the structure? Why blame their failures specifically on the structure? Everyone knows what he thinks of the Constitution, but I don't remember him specifically talking about how the structure of the senate is at fault.

    *Warning...'tinfoil hat thinking' in overdrive, ahead.*

    What else is going on now that has to do with the Constitution?

    So, please tell me that what I just suggested is completely beyond the realm of possibility. Please tell me that this utterly outrageous idea is way beyond the intelligence level of obama. Please tell me I'm nuts and this is absolute fantasy and could never happen.





    http://www.washingtontimes.com/news/2014/may/23/obama-blames-structural-design-congress-gridlock/

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