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The problem, which hardly needs stating, is that the federal government has become the very monster the Founders anticipated.

The Final Constitutional Option

Bob Berry, Regional Director for Convention of States Project

Having been dormant for centuries, a potent section in the U.S. Constitution is now in the minds and on the lips of a new generation of reformers who are determined to keep the nation out of an abyss. As America stares hard at the darkness ahead, the new reform-ers — supporters of The Convention of States Project — have begun to popularize this for-gotten constitutional provision that might well become Official Washington’s undoing.

The problem, which hardly needs stating, is that the federal government has become the very monster the Founders anticipated. Quite likely, the beast we face is far beyond anything that could have been imagined by the found-ing generation. Even today it is hard to ade-quately comprehend the omnipresent and, thanks to the NSA, omniscient federal menace that hangs over every aspect of life in 21^st-cen-tury America.

The Founders’ concern that power would be consolidated at the federal level is dealt with in Article V of the U.S. Constitution.

Author Mark Levin, in his blockbuster best-seller, The Liberty Amendments: Restoring theAmerican Republic, based his ideas for reformon this less well-known means by which amendments may be proposed — a process that entirely outflanks Washington’s fixed for-tifications. Levin cogently argues that attempts at reform from within Washington are futile.

Obviously, what is needed is a way to trump the Beltway ruling class from without.

Enter Article V, which prescribes the amend-ment process. Article V establishes the amendment process as a two-phase affair: proposal, followed by ratification of three-fourths of the states. The states have no way to ratify that which has not first been pro-posed. From the beginning, the states have re-lied on congressional super-majorities to do the proposing.

But the Founders knew that Congress would be loath to propose anything that would limit federal power, so they included a way for the states to propose amendments in an ad hoc assembly that Article V styles as “A Conven-tion for Proposing Amendments.”

The idea of using the amendments conven-tion assembly has surfaced from time to time in U.S. history — most recently in the 1980s, with the movement to propose a Balanced Budget Amendment (BBA). The effort peaked with 33 states passing resolutions — just one shy of the required two-thirds of state legisla-

tures, which would have compelled Congress to issue a call for the amendments convention.

That’s when the effort took a bizarre detour — into oblivion.

The BBA advocates of the 1980s, including then-President Reagan, were decidedly of the political right. The last thing anyone in the movement expected was for “friendlies” from elsewhere on the right to object to the idea in near hysterics as a plot to render the Constitu-tion null and void. The unlikely opponents, while not necessarily opposed to a BBA, con-demned in no uncertain terms the use of the amendments convention to propose it. It quickly became evident, from the critics’ rhet-oric, that they had confused the Convention for Proposing Amendments assembly with a so-called plenary (full authority) Constitu-tional Convention.

BBA advocates attempted to clarify the differ-ence between the types of conventions by pointing out that, as sovereigns, the states have never needed permission from the Con-stitution to call an actual Constitutional Con-vention. Indeed, the only reason to invoke Ar-ticle V would be to self-limit the convention’s authority to “proposing amendments,” as the assembly’s name indicates.

The critics would have none of it.

In appeals to the public, the critics insidiously

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The new reformers would do well to press on with the case for state-initiated amendments and ignore the tired conspiracy theories of the past.

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left out any mention of the ratification process by three-fourths of the states — the implica-tion being that once the proceedings began, there would be nothing that could be done to hold it back when, inevitably, extreme ele-ments moved to dissolve the Constitution. When challenged on this, the foes weaved the assertion into their conspiracy theory that the out-of-control assembly would simply declare its own sovereignty and dispense with the rati-fication process altogether!

As preposterous as this notion was, the ac-companying slogan was more effective: “We don’t need a new Constitution!” Gobsmacked, the BBA proponents could only look on as state legislators made for the tall grass. One by one, states began rescinding BBA resolutions.

As a postscript to this sad chapter, it should be noted that by the late 1980s, the national debt had just topped ^$2 trillion. An effective BBA at that time could have stopped the bleeding that, by any objective measure, has become an existential threat.

The Professor

In 2009, an academic from the University of Montana was surveying opportunities for re-search. Of particular interest to Professor Robert G. Natelson were areas of constitu-

tional scholarship characterized by a scarcity of research, poor research, or, optimally, both.

Intrigued by the vestigial Convention for Pro-posing Amendments mentioned in Article V, Natelson was struck by the paucity of mod-ern-day scholarship on the topic, despite an abundance of original source material.

Quietly, he set to work.

Before long, Natelson had acquired nearly all of the journals of founding-era conventions. This was added to his existing collection of material from each state’s ratification conven-tion as each considered whether or not to ap-prove the proposed 1787 Constitution. A pic-ture of early American convention tradition began to emerge.

Casting a wider net, he pulled in over 40 gen-erally neglected Article V court decisions, some of which had been argued before the Supreme Court. In a series of publications, Natelson churned out his findings (available at www.articlevinfocenter.com), which sur-prised many — including himself.

The research quickly became the gold stan-dard of scholarship about the process, known formally as the “State-Application-and-Convention” method of amending the Constitution.

Natelson held that, far from being a self-de-struct mechanism, the Founders meant for the process to be used in parallel to the congres-sional method as yet another “check and bal-ance” within the framework of the newly con-stituted federal government.

Most importantly, Natelson drew a strong dis-tinction between the assembly mentioned in Article V and the oft-mentioned Constitu-tional Convention. For this reason, he is quick to correct anyone mistakenly referring to the Convention for Proposing Amendments as a “Constitutional Convention.”

Natelson’s research trove smashed the con-spiracy theories of the 1980s and has become the intellectual base of the resurgent Article V movement that has been joined by Levin and other prominent reformers. When the history is written, it will record that this was the mo-ment the Article V movement achieved criti-cal mass.

The new reformers would do well to press on with the case for state-initiated amendments and ignore the tired conspiracy theories of the past. Having been marginalized to an almost comic degree, the foes of yesterday have been effectively dispatched.

When a battle is won, it is wise to move to the next battle, for the waiting opponent is formi-dable and lives on Capitol Hill.

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