This is the last installment in a five-part series on Article Five of the U.S. Constitution published on TheBlaze.com. Please check back every day this week for new content and click here for the entire series.
Throughout this series, I have argued that an Article Five amendment-proposing convention offers a viable and well-designed process for the states to rein in a runaway federal government and restore our Republic. In fact, I believe this process may well be the only way to close the court-created loopholes to our Constitution’s original limitations on federal power.
The process is as safe as any political process can be, entailing numerous, redundant protections.
First, the scope of authority for the convention is set by the topic specified in the 34 applications that trigger the convention. So if 34 states apply for a convention to propose amendments that limit federal power, any proposals beyond that scope would be out of order.
Second, state legislatures can recall any delegates who exceed their authority or instructions. As a matter of basic agency law, actions taken outside the scope of a delegate’s authority would be void.
Third, even if a majority of convention delegates went rogue and were left unchecked by the state legislatures they represent, and even if Congress nevertheless sent the illicit amendment proposals to the states for ratification, the courts could intervene to declare the proposals void. While the courts don’t have a wonderful track record in interpreting broad constitutional language, they do have an excellent track record of enforcing clear, technical matters of procedure and agency law.
But the most important protection on the Article Five process is the explicit constitutional requirement that three-fourths, or 38, of the states must ratify any proposed amendments in order for them to become effective. This means that any bad amendment can be blocked by only 13 states.
In light of the multiple layers of protection on the state-led Article Five convention process, it is difficult to understand why some are so afraid of it–or why they don’t seem to fear Congress’ parallel Article Five power to propose amendments on any subject, any day it sits in session.
Certainly, no future outcome of any kind can ever be absolutely guaranteed. Day has dawned since the beginning of time, but who can definitively prove that the sun will rise tomorrow?
What critics must acknowledge, however, is that the proper risk analysis is a comparative one. It would be difficult for anyone to maintain, with a straight face, that the risk of a state-led amendment-proposing convention is greater than the risk of staying our current course.
The “risk” (which, again, exists only in the sense that nothing is entirely risk-free) is negligible. But to those who can’t see around it, I posit this: Courage is the price of liberty. It always has been, and it always will be.
Courage was the tattered uniform of young men who gave their lives to rid a fledgling America of the scourge of slavery. It was the tank that carried weary soldiers over the battlefields of a Hitler-stained Europe. And courage was the voice of Martin Luther King, Jr., challenging America to end her hypocrisy and make good on her commitment to the legal equality of mankind.
America exists because our forefathers pledged their lives, their fortunes, and their sacred honor to secure for us the blessings of liberty and the right of self-governance. They left us Article Five’s convention process to ensure that we would have a final defense against federal tyranny. If our generation is so frozen in fear that we lack the modicum of courage required to hold a meeting, then we are simply unworthy of our heritage.
Courage is the price of liberty.
Rita Martin Dunaway serves as Staff Counsel for The Convention of States Project and is passionate about restoring constitutional governance in the U.S. Follow her on Facebook (Rita Martin Dunaway) and e-mail her at firstname.lastname@example.org.