What An Article V Convention Might Mean

Is this country ready to open Pandora's box?

While I was speaking at the John Birch Society (JBS) annual meeting in August 2022, the issue of an Article V Convention came up. Because their views on this topic are different than many other conservatives, I asked if they would write up their analysis of what calling such a convention might mean for the country. I offered to publish such an essay here on this substack, so that many would have an opportunity to consider a different point of view on this important topic.

From the JBS website:

John Birch was a courageous Baptist missionary who went to China in 1940. When Colonel Jimmy Doolittle led the famous World War II bombing raid on Tokyo, John was brought to the survivors and he helped them to safety, then volunteered, creating an intelligence network that saved countless American lives.

He earned the rank of Captain in the 14th Air Force, as well as numerous commendations, including the Legion of Merit. Ten days after the war officially ended, Captain Birch was brutally killed by Chinese Communists.

Mr. Welch (found of the JBS) discovered that the U.S. government had covered up Birch’s death and was so impressed by his ideals and his character that he requested permission of George and Ethel Birch (John’s parents) to place John’s name on the organization he was going to create. They agreed and immediately became Life members.

This is an organization founded to (among other things) resist communism. According to Wikipedia:

The John Birch Society from its start opposed collectivism as a "cancer" and, by extension, communism and big government.[5]: 11 [23] The organization and its founder, Robert Welch, promoted Americanism as “the philosophical antithesis of communism.”[24] It contended that the United States is a republic, not a democracy, and argued that states' rights should supersede those of the federal government.[25] Welch infused constitutionalist and classical liberal principles, in addition to his conspiracy theories (emphasis mine - note how these “theories” aren’t specifically named), into the JBS's ideology and rhetoric.[26] In 1983, Congressman Larry McDonald, then the society's newly appointed chairman, characterized the JBS as belonging to the Old Right rather than the New Right.[27]

The society opposes "one world government", the United Nations,[28] the North American Free Trade Agreement (NAFTA), the Central America Free Trade Agreement (CAFTA), the Free Trade Area of the Americas (FTAA), and other free trade agreements. It argues the U.S. Constitution has been devalued in favor of political and economic globalization. It has cited the existence of the former Security and Prosperity Partnership as evidence of a push towards a North American Union.[29][30] The JBS has sought to reduce immigration.

The JBS supports auditing and eventually dismantling the Federal Reserve System.[31] The JBS holds that the United States Constitution gives only Congress the ability to coin money, and does not permit it to delegate this power, or to transform the dollar into a fiat currency not backed by gold or silver.

I gently suggest that, in the interests of intellectual integrity (if nothing else) that it is worth approaching todays JBS with an open mind, as I have. The organization has been repeatedly maligned (as in the Wikipedia quote above) as conspiracy theorists, and even as “racists”, although the weaponization of both of these terms for political purposes has destroyed any objective meaning. Even WEF young leader graduate Dr. Lena Wen is now accused of being “racist” and “abelist” for advocating more sensible COVID public health policies. However, from what I can tell, the JBS organization has actually been at the vanguard of political perspectives that many now accept as mainstream, and has consistently advocated anti-racist positions. In hindsight, it is clear that the JBS has successfully opened the Overton window of acceptable political discourse. After what I have personally experienced since January 2020, I now have a lot of empathy for those who have taken controversial stands based on independent thought and analysis, and who have been attacked and stereotyped by corporate media.

In my opinion, it is time to recognize that JBS members have been American thought leaders for many decades now. Like all of us out on the bleeding edge, they have not been right about everything. That is a risk that comes with leading rather than following. But at a minimum I believe that their opinion and insights on US Constitutional matters deserve to be considered with an open mind. With his historic speech of September 01 2022, even Joe Biden now claims to be a constitutionalist and a nationalist. Whether his comments were sincere or not, it is clear that constitutionalism and nationalism have become accepted mainstream US political positions.

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To provide context for this discussion

Article V of the U.S. Constitution gives states the power to call a Convention of States to propose amendments. It takes 34 states to call the convention and 38 to ratify any amendments that are proposed.

Article V, in its entirety reads:

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 always, please read the article below carefully before commenting. I know the author spent a lot of time carefully crafting his analysis, and the positions held by the John Birch Society are not to be taken lightly.

Then let’s discuss.

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Article V Convention Threatens Liberty

By Christian Gomez for the John Birch Society

What was America’s saving grace from the kind of outright tyrannical response to SARS-CoV-2 and COVID-19 that we witnessed in communist China and even in Canada, where the Trudeau government froze the bank accounts of the non-violent truckers peacefully protesting for their medical liberty? The answer is the U.S. Constitution and our system of federalism, which prevents the national or (in our case) federal government from seizing total control with little-to-no checks and balances on its power.

If it were not for the Constitution standing in the way, the Biden administration’s tyrannical COVID mandates would still be in place and fully enforced, including the Occupational Safety and Health Administration (OSHA) mandate — requiring companies with a hundred or more employees to receive the genetic COVID vaccines — and the Centers for Disease Control and Prevention (CDC)’s public-transportation mask mandate. Without our founding document, the ability of states and individuals to resist these onerous violations would be greatly hampered. Upholding the Constitution and Bill of Rights, as written by the Founding Fathers, is paramount to preserve liberty and keep our Republic.

Yet, there are some conservatives clamoring for a convention to amend the Constitution (a Constitutional Convention) that also possesses the power to entirely rewrite the Constitution.

For example, this past July, three Republican members of Congress introduced H.Con.Res.101, a resolution in which “Congress hereby calls a Convention for proposing amendments to the Constitution of the United States.” And earlier this year, in a separate on-going effort, the Convention of States (COS) Project persuaded mostly Republican state legislators in Nebraska, South Carolina, West Virginia, and Wisconsin to pass applications to Congress to call a Constitutional Convention. Nineteen states have already passed and transmitted applications to Congress to call a convention based on the COS model resolution. Fifteen more states are needed for Congress to call COS’ desired Article V convention.

Regarding what is Article V, The New American magazine explains:

The fifth article of the U.S. Constitution, Article V, is the amendment article. It provides two methods for proposing amendments to the Constitution and two modes of ratification. Either Congress proposes amendments (when two-thirds of both houses see fit), or a convention (called by Congress) proposes amendments if two-thirds of the state legislatures apply for it.

In either case, the proposed amendments officially become part of the 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.” If a new constitution comes out of the convention, however, it could have its own mode of ratification.

All 27 amendments to the Constitution, including the first 10 (the Bill of Rights), were initially proposed and passed by Congress and afterward sent to the states for ratification. Never in the 230-plus years of American history since our Constitution was ratified has a convention been used to propose amendments. 

Despite various convention applications over the centuries, there has not been a Constitutional Convention since the 1787 Federal Convention in Philadelphia that produced our current Constitution.

Gordon S. Woods, the Alva O. Way University Professor and professor of history emeritus at Brown University, notes in The Creation of the American Republic 1776 – 1787 that the delegates to the 1787 Philadelphia Convention recognized their authority as sovereign, being directly derived from the people-at-large, who are the ultimate sovereigns of political authority. George Washington likewise acknowledged this very concept of sovereignty residing in the people-at-large in his 1796 farewell address. In it, Washington said:

The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the constitution which at any time exists till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all.

As such, the delegates to the 1787 Convention were not legally bound to any limitations on their authority imposed upon them by either the state legislatures or even by Congress Assembled (or Confederation Congress).

In fact, the delegates outright discarded limitations that were issued by 10 of the 12 authorizing states.  And although Rhode Island did not send any delegates, they too reminded the convention delegates of their “limited” authority and that any alterations that they made to the Articles of Confederation would have to be the confirmed (or ratified) by the legislatures of all 13 states, including Rhode Island, in accordance with Article XIII of the Articles of Confederation. Article XIII specifically stipulated:

[T]he Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; 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 con-firmed by the legislatures of every state. [Emphasis added].

Ultimately, however, the delegates in Philadelphia drafted an entirely new Constitution. James Madison, in Federalist No. 40, said “that a rigid adherence in such cases to the [limitations suggested by the states], would render nominal and nugatory, the transcendent and precious right of the people to abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.”

As the sovereign representatives of the people, delegates to an Article V Constitutional Convention possess the full legal authority to entirely scrap the Constitution and the republican system of government it established and to replace it with a new constitution and form of government. And this is precisely what happened at the Philadelphia Convention. James Madison, in his diary of the debates at the Federal Convention for May 30, 1787, observed:

Gen. PINCKNEY expressed a doubt whether the act of Congress recommending the Convention, or the commissions of the Deputies to it, would authorize a discussion of a system founded on different principles from the Federal Constitution.

Mr. GERRY seemed to entertain the same doubt. [Emphasis added throughout].

And on June 16, 1787, Madison recorded New York delegate John Lansing as saying: “the power of the Convention was restrained to amendments of a Federal nature […] The acts of Congress, the tenor of the acts of the States, the commissions produced by the several Deputations, all proved this. […] it was un-necessary and improper to go further. […] N. York would never have concurred in sending deputies to the convention, if she had supposed the deliberations were to turn on a consolidation of the States, and a National Government.” (Emphasis added.)

In fact, one would be hard-pressed to find a single delegate who said the opposite, claiming that the commissions from the states authorized the delegates to go further than simply revising the Articles of Confederation. Instead, some of the delegates justified the necessity of exceeding their commission authority. For example, Alexander Hamilton said, “The States sent us here to provide for the exigencies of the Union. To rely on and propose any plan not adequate to these exigencies, merely because it was not clearly within our powers, would be to sacrifice the means to the end.” (Emphasis added.)

As the sovereign representative of the people-at-large, the delegates cited the “original principle” of being able to “abolish or alter their governments” as the basis for scrapping the ineffective Articles of Confederation with the much-improved current Constitution. At the Pennsylvania ratifying convention, on November 26, 1787, James Wilson, who previously served as one of Pennsylvania’s delegates to the Federal Convention, said: 

The Federal convention did not act at all upon the powers given to them by the States, but they proceeded upon original principles, and having framed a constitution which they thought would promote the happiness of their country, they have submitted it to their consideration, who may either adopt or reject it, as they please. [Emphasis added].

A modern Convention today, under Article V, would not be a “Convention of the States.” Rather, it would be a convention of the people. And as such, the delegates would be within their purview — as the sovereign representative of “We the People” — to reject any state or federal limitations that may be imposed on their actions and to instead proceed upon original principles again to frame an entirely new, modern and likely very socialist-leaning constitution. As the late Supreme Court Justice and constitutional originalist Antonin Scalia warned in 2014, shortly prior to his death, “I certainly would not want a Constitutional Convention. Whoa! Who knows what would come out of it?”

Similarly, in a letter written to Phyllis Schlafly, dated June 22, 1988, Chief Justice Warren Burger warned:

[T]here is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or to one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don't like its agenda.

Likewise, a decade earlier, on February 26, 1979, U.S. Senator from Arizona Barry Goldwater, a.k.a. “Mr. Conservative,” warned against an Article V convention ostensibly limited to proposing a federal balanced budget amendment; Goldwater said:

I think it would be very foolhardy, it would be a tragic mistake, to hold a Constitutional Convention for this one purpose. I say it would be foolhardy and dangerous because if we hold a constitutional convention, every group in the country — majority, minority, middle-of-the-road, left, right, up, down — is going to get its two bits in and we are going to wind up with a Constitution that will be so far different from the one we have lived under for 200 years that I doubt that the Republic could continue.

Senator Goldwater doubled down, adding,

“even though my State has approved a constitutional convention, I wanted my voice as a Senator from that State and as a Member of this body to be registered as totally opposed to any constitutional convention.”

The bottom line is that nobody knows what would emerge from a modern Article V Constitutional Convention. Why risk the known individual liberties and limitations on the federal government that the Constitution already guarantees for the unknown outcome of a convention, based on promises of additional hypothetical limitations? Moreover, with all 50 states (both Blue and Red) participating, what kind of delegates would likely be sent to such a convention?

In an article published on TheFederalist.com, Elaine Donnelly, the president of the Center for Military Readiness, an independent public policy organization that reports on and analyzes military and social issues, provides the following realistic answer:

Conservative Con-Con promoters will not control who attends, what issues are discussed, or what constitutional amendments ultimately are approved. The convention will make all decisions and conservatives will not be able to guarantee the outcome.

Imagine both political parties attending the same national convention, at the same time, with progressive insiders controlling credentials, rules, issues committees, and voting procedures.

Participants would include not just conservative Republicans, but Democrats, RINOs, socialists, Green New Dealers, Supreme Court packers, gun controllers, police de-funders, big spenders, Roe v. Wade codifiers, teacher unions, Anthony Fauci fans, Electoral College critics, race-obsessed wokesters, social justice warriors, and peaceniks who would balance the federal budget by disbanding the Department of Defense.

What sort of constitution would emerge from delegates who are Anthony Fauci fans, COVID-19 vaxxers, mask mandaters, wokesters, and other progressives and swampy RINOs from the Administrative State? An Article V convention is not the mechanism to take back and rein in our federal government, it’s the principal vehicle to hijack and irrevocably destroy our Republic. Liberty would doubtlessly survive an Article V Constitutional Convention; it would be the first target of the Administrative State seeking to permanently consolidate its current unconstitutional powers.

Simply put, as Justice Scalia warned before a gathering of the Federalist Society, in Morristown, New Jersey, on May 8, 2015, “A constitutional convention is a horrible idea,” adding, “This is not a good century to write a constitution.” Scalia is correct: this is not a good century to write a constitution, nor is it a good century to amend it, especially via a mechanism as risky as an Article V Constitutional Convention.

For an in-depth and thorough explanation about an Article V Constitutional Convention and why lovers of liberty should oppose it, I highly recommend getting a copy and reading the July 11, 2022 Special Report of The New American magazine, a publication of the John Birch Society. Read it online for free. The JBS is the bedrock of the Constitutional conservative movement in America; it and TNA have been the leading conservative voices against medical tyranny and the foremost articulate conservative authorities warning about the dangers of a Constitutional Convention. More Americans should be paying attention to what they have to say.

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What are your thoughts concerning the points raised?

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