Didn’t the 1st convention toss out the Articles of Confederation? They convened to fix the Articles and, in the end, they got rid of them. Isn’t that what we’re afraid of if we hold a 2nd convention?
The state are, it seems, more to be trusted for the peoples in the longitude and latitude of county electorates are most likely to be honestly validated...eye ball to eyeball, autograph to autograph.
Shawn, I appreciate the engagement, but your comments do not touch the question this post actually asks.
This post does not argue that proposal and ratification are identical. It argues that a convention's internal conduct carries no legal force, because nothing it produces becomes supreme law until three-fourths of the states ratify it, and that threshold sits in the text of Article V, beyond the reach of anyone in the room. You restate the proposal-versus-ratification distinction at length, but you never engage the wall itself, which is the entire load the post carries.
I would also note, for readers following along, that most of your comments are not new. The runaway-convention reading of 1787, the claim that no Founder counseled amendment when the Constitution is disobeyed, and the enforce-it-do-not-amend-it argument all appeared, nearly word for word, in your comments on "What the Framers Actually Built Into Article V." [https://restorefirstprinciples.substack.com/p/what-the-framers-actually-built-into]
My belief is that a repeated argument is not necessarily a stronger one. I would also add that more than once in this thread you have treated an unanswered comment as a concession. Silence in a comment section is not agreement, and it should not be characterized as one.
On the substance, two of your sourced points do not hold up the way they are presented.
The Kansas ruling you cite struck down that state's two-thirds requirement for submitting an Article V application. It concerned the legislature's power to apply for a convention. It did not address whether states may limit delegates, and it was decided in favor of the convention's supporters, not against them. [ https://caselaw.findlaw.com/court/us-dis-crt-d-kan/117911786.html ]
As for Federalist No. 40, it does not show Madison “confessing” a runaway. He wrote that the Convention's powers "were merely advisory and recommendatory" and that its plan was "of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed." That states that the Convention's work carried no force until the people approved it, which is the very ratification wall this post describes. Madison then closed that essay by stating that "the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it." [ https://avalon.law.yale.edu/18th_century/fed40.asp ]
The record is available to anyone who wants to read it and is why I always offer URLs in the posts and here in this comment.
Another great analysis of Convention of States and the fear mongers. Thank you for expanding on Cordell's statement.
I have read other comments on this article. One individual appears to have never been in a State legislator's policy discussions; otherwise he would know how almost all the legislatures operate within Mason's Parliamentary Rules when discussing and choosing to vote on bills and resolutions which insures the process will be in a very similar orderly action. There have already been multiple pacts by convention between States on various issues over the years; including in the last ten years several simulated Article V Convention of States which all 50 States had participants in attendance. Apparently he is not aware of the 20+states that have passed bills to restrict what the delegates/commissioners can discuss at a Convention of States with potential fines or even criminal charges if they vary from their State Resolution. These type restrictive bills have been held legal by a former legal case in Washington State regarding a couple of Presidential Electors who cast different votes than what the Washington law required. The Supreme Court stated the Washington policy was solid in fining and disqualifying those Electors per their legislation written policy. The Kansas challenge was from earlier legislation passed in their State legislation that required a 2/3rds vote to pass an Article V Convention of States Resolution through both chambers This was not what Article V in the U S Constitution required. This went to court and was defeated so the Kansas legislature was then able to become the 20th State to pass the similar Resolution that 19 other States had already passed.
Eric, you raise a very important point. The suggestion that convention delegates are uncontrollable is specious in that it assumes that convention delegates are less subject to rules of order than legislators elected to deliberate for the people.
Mr. Whaley's question assumes convention opponents distrust the states. We do not. We trust state legislatures operating under clearly defined constitutional procedures. More importantly, we trust what the Founders repeatedly taught: liberty depends upon an informed and engaged people. Government cannot be expected to obey a Constitution that the people themselves do not understand. The Founders did not tell us to rewrite the Constitution every time politicians ignored it. They told us to learn it, defend it, and hold public officials accountable. Legislators are human. They respond to elections, pressure, and public involvement. That is where we have failed, and that is where the real solution lies.
This is the central flaw in the Article V movement. The Founders never taught that the remedy for constitutional disobedience was constitutional amendment. They gave us elections, federalism, state governments, separation of powers, and an informed citizenry capable of demanding compliance. The answer to officials ignoring the Constitution is enforcing the Constitution—not rewriting it.
Mr. Whaley also blurs a critical distinction. Ratification and proposal are not the same thing. Ratification is a veto power exercised under clearly defined constitutional rules. A convention is an agenda-setting body operating under rules Article V never defines. How are delegates apportioned? How are votes counted? Who resolves disputes? The recent federal court ruling regarding Convention of States in Kansas proves states may not limit delegates to an Article V convention; delegate limitations are not enforceable! Can a convention determine its own authority? Article V answers none of those questions. The asymmetry is not in our minds. It is in the Constitution itself.
History reinforces the concern. The states called the Philadelphia Convention under their sovereign authority, and many prescribed specific mandates governing both the convention and ratification. Those delegate commissions carried the force of state law. Yet in Federalist No. 40, Madison defended departing from those mandates and treated them largely as advisory. Whether one applauds the outcome is irrelevant. The lesson is simple: delegates in convention may not consider themselves bound by restrictions imposed upon them.
That matters because today's Article V advocates make the same promise. We are told delegates will be controlled by applications, instructions, and state laws. Yet the principal historical example we possess demonstrates the opposite. We have historical evidence that delegate restrictions can be ignored. We have no historical evidence proving they can be reliably enforced.
Readers should also understand the perspective from which these arguments are being made. Mr. Whaley often presents his writings as balanced explorations of competing viewpoints. Yet his own published biography states that he is actively working to achieve fiscal restraints, term limits, and limits on federal power, and he has written directly for Convention of States advocating the Article V process to achieve those goals.
There is nothing wrong with advocacy. The problem arises when advocacy is presented as neutral inquiry. A reader who examines Mr. Whaley's published positions, stated mission, and Convention of States writings is compelled to question the neutrality of the presentation and the completeness of the arguments being offered. This is not the work of a detached observer. It is the work of a committed Article V advocate advancing a preferred outcome.
I do not distrust the states. I distrust asking Americans to gamble their Constitution on a process whose most important rules have never been settled in advance. The Constitution gives us detailed rules for ratification and almost none for a convention. That distinction is real. It is written into Article V itself.
One final question remains. If leading Article V advocates routinely present advocacy in the form of neutral inquiry, downplay legitimate concerns about delegate authority, and dismiss unresolved questions surrounding convention procedures, why should Americans assume those same tendencies would somehow disappear inside an actual Article V convention? Trust is earned through transparency and candor. Before entrusting our Constitution to a process with undefined rules, Americans should ask whether the conduct of its advocates has earned that trust.
If you know anything about the article 5 convention promoter specifically the convention states people they’re hyper partisan, and they gaslight the JBS people all the time. I am perfectly comfortable with my responses previously in this thread, the JBS angle is completely stupid and irrelevant. The issue should be discussed on the facts of the issue and comments about JBS are not that. So moving on to guard the constitution….
I later learned that Mr. Meehan is, sadly, the person who gave the JBS all those talking points. Bottom line on the runaway issue is that it wasn't believed in 1787/88 by the 65% of the 1648 delegates that assembled to discuss and ratify the Constitution. Those who didn't approve had other issues like taxation, a standing army and lack of a bill of rights. The lie of the runaway convention wasn't on the radar as truthful and ought not be believed today.
We’ve already addressed this comment before and it’s simply factually not documented and true. There’s plenty of delegates that discussed the fact that the 1787 convention exceeded their authority. Here’s the important point the facts of the facts and speak for themselves. You don’t have to take a percentage of the delegates, raise your hand survey and their opinions the analysis makes the case for itself. 10. States had specific limits on what was required to come out for ratification article 7 of the constitution clearly betrayed that quad Erich demonstrate we have a runway. It’s really revealing and dangerous that you article 5 convention promoters over and over and over and over refused to see the fox and just bang the drums on your institutionalized deception it pretends legitimate concerns for a future convention. Think about that.
Here’s another thing it doesn’t matter who gave who or what organization any arguments or information the arguments are solid researched and validate so you could talk about personalities and organizations all you want but those of us out here that know the issue you’re gonna keep talking about the facts.
Very important perspective Ken, glad you posted this.
Under Article V, neither Congress nor a state called convention ratifies proposed amendments, therefore. I foresee that should a convention be called, competing amendments will appear and enter the ratification process. When visibility of convention proposed amendments happens, Congress will work to blunt any features they as politicians find undesirable and compete with wording they favor. We have an historical event suggesting just such a situation.
The 27th Amendment was the only constitutional amendment to be certified by the congressional archivist, Don Wilson. On May 7, 1992, Michigan was the final state to ratify the 202yr old amendment. Congressional leaders wanted to meddle in the ratification process and suggested Don Wilson forgo his duty and allow Congress to determine how to proceed. Nine days later, May 18, 1992, Don Wilson rejected the congressional leadership suggestion and announced the completion of the ratification process. Two days later May 20, 1992, Congress voted to accept the amendment as it was. Don Wilson's action preserved the integrity of the ratification process for future operation.
If you trust thirty-eight states to reject a bad amendment, why don't you trust those same states to participate in proposing one?
The fear of a "runaway convention" is understandable, but it overlooks a critical distinction. An Article V Convention can only propose amendments; it cannot ratify them. The real safeguard is, and always has been, the requirement that three-fourths of the states approve any amendment before it becomes law.
The Framers included the convention process because they understood that Congress might someday refuse to restrain itself. Article V gives the states a constitutional pathway to act when Washington will not.
Whether one supports or opposes a convention, the burden is to explain why the states can be trusted as the final guardians of the Constitution but not as participants in the amendment process itself. The Constitution places its faith in the states on both paths. Perhaps we should as well.
In 1786 the Annapolis Convention called for a convention of the states to address the shortcomings of the Confederation and meet the "exigencies of the union". In 1786 New Jersey showed up a that convention with a new plan for government in hand, as they also did in 1787, along with Virginia who had a plan of their own to propose. After New York turned down the 1783 impost tax suggested by the Confederation, all the states recognized the Confederation was a failed format to govern with the unanimous provision in Article XIII. The Article XIII unanimous provision of the Confederation was fulfilled 3/1/1788 whereby the new plan of government was agreed to by all the Confederated states, three months (6/21/1788) before the ninth state ratified the new constitution.
"the new plan of government was agreed to by all the Confederated states"
REALLY? Please provide the original source for that invalid assumption.
It was not the Articles of Confederation the 1787 Convention was called under. It was the residual sovereignty of the states. In their individual delegate commissions they applied an identical requirement.
Article 7 of the draft US Constitution only required 9 states to ratify.
In Federalist 40, Madison acknowledged the delegates ignored their restrictions: "It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention...."
"Can it then be said that the late convention did not assume powers to which they had no legal title? On the contrary, Sir, it is clear that they set aside the laws under which they were appointed, and under which alone they could derive any legitimate authority, they arrogantly exercised any powers that they found convenient to their object, and in the end they have overthrown that government which they were called upon to amend, in order to introduce one of their own fabrication."
-- Robert Whitehill in the Pennsylvania Ratifying Convention, 28 Nov. 1787
"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. It may be said, that the States cannot ratify a plan not within the purview of the Article of the Confederation providing for alterations and amendments.”
— Monday June 18th, 1787, Madison, James (2005-12-01). Journal of the Federal Convention
Three documents emerged from the 1787 convention. The new U.S. Constitution, a ratification and transition resolution and a letter from George Washington to the President of the Confederation Congress. The Confederation Congress agreed to the ratification and transition resolution and passed it along with the new constitution to the states. On 3/1/1788 Rhode Island was the thirteenth state to sign the resolution.
The Library of Congress preserves and provides access to the historical records of the U.S. Constitution’s creation, including the Resolution of Congress of 28 September 1787, which marked the formal step toward ratification.
The Resolution of 28 September 1787
On 28 September 1787, Congress convened and unanimously resolved that the report of the Constitutional Convention, along with its resolutions and accompanying letter, be transmitted to the legislatures of the several states so they could submit it to a ratifying convention of delegates chosen by the people in accordance with the Convention’s own resolves.
This resolution effectively set the stage for the ratification process, ensuring that each state would have the opportunity to debate and vote on the proposed Constitution.
Bill, there are several important historical inaccuracies in your summary.
First, Congress did not approve the Constitution or the Convention's proposed ratification plan. After two days of contentious debate, Congress reached a compromise and unanimously agreed only to TRANSMIT the Convention's report to the states. Richard Henry Lee explained that "unanimously" referred only to transmitting the documents—not approving them. Even George Washington acknowledged that many readers would mistakenly believe Congress had endorsed the Constitution. That misunderstanding has persisted for over two centuries.
Second, Rhode Island did not support the Constitution in 1788. It refused to send delegates to Philadelphia, overwhelmingly rejected the Constitution by statewide referendum in March 1788 (2,708–237), and did not ratify until May 29, 1790.
Most importantly, the historical record demonstrates why the phrase "runaway convention" exists.
Of the twelve states that sent delegates to Philadelphia, ten expressly prescribed delegate commissions directing their delegates to report alterations that were to be agreed to by Congress and confirmed by the states. The February 21, 1787 congressional resolution contained substantially the same direction. Yet the Convention instead proposed Article VII, establishing an entirely different ratification process requiring conventions in only nine states.
Those delegate commissions were not casual suggestions. They were legal commissions issued by sovereign states. Madison did not deny that the Convention departed from them. In Federalist No. 40, he defended doing so by arguing that the delegates' powers were "merely advisory and recommendatory."
That is precisely why many constitutional scholars and historians describe Philadelphia as a runaway convention. Whether one believes the outcome benefited America is a separate question. But the documentary record shows that many of the delegates acted beyond the written authority prescribed by their appointing states.
The historical documents—not modern talking points—should guide this discussion.
Sources: The Documentary History of the Ratification of the Constitution (Kaminski et al.); Pauline Maier, Ratification; Federalist No. 40; February 21, 1787 Resolution of Congress; September 28, 1787 Resolution of Congress; Rhode Island ratification records and referendum.
What is accurate is that the Congress approved the procedure, and Rhode Island also approved the resolution 3/1/1788.
From the Journal of Public Law and Policy, volume 40, April 2017,
by Michael Farris.
"Specifically referencing the accompanying resolutions (“Ratification
and Transition”), Congress limited its approval to the
process itself, rather than the Constitution on its substance.
(Journals of Congress September 28, 1787
The editors of the encyclopedic Documentary History of the
Ratification of the Constitution summarize the approach taken
by Congress thusly:
On 28 September Congress reached a compromise. It resolved
“unanimously” that the Constitution and the resolutions
and the letter of the Convention be sent to the states
with only a suggestion that the states call conventions to
consider the Constitution. This compromise followed the
recommendation of the Convention.
Congress only approved the new process and sent the matter to
the state legislatures with recommendation that they do the same."
I expect you to discredit Michael Farris, as you have done to Ken Whaley, and I can now say I've communicated with the person who ill advised the JBS on the truth surrounding the 1787 convention. Since I see you as inveterate, there is no point in responding to my post.
Didn’t the 1st convention toss out the Articles of Confederation? They convened to fix the Articles and, in the end, they got rid of them. Isn’t that what we’re afraid of if we hold a 2nd convention?
The state are, it seems, more to be trusted for the peoples in the longitude and latitude of county electorates are most likely to be honestly validated...eye ball to eyeball, autograph to autograph.
First order is secure one man, one vote each county, each state.
Shawn, I appreciate the engagement, but your comments do not touch the question this post actually asks.
This post does not argue that proposal and ratification are identical. It argues that a convention's internal conduct carries no legal force, because nothing it produces becomes supreme law until three-fourths of the states ratify it, and that threshold sits in the text of Article V, beyond the reach of anyone in the room. You restate the proposal-versus-ratification distinction at length, but you never engage the wall itself, which is the entire load the post carries.
I would also note, for readers following along, that most of your comments are not new. The runaway-convention reading of 1787, the claim that no Founder counseled amendment when the Constitution is disobeyed, and the enforce-it-do-not-amend-it argument all appeared, nearly word for word, in your comments on "What the Framers Actually Built Into Article V." [https://restorefirstprinciples.substack.com/p/what-the-framers-actually-built-into]
My belief is that a repeated argument is not necessarily a stronger one. I would also add that more than once in this thread you have treated an unanswered comment as a concession. Silence in a comment section is not agreement, and it should not be characterized as one.
On the substance, two of your sourced points do not hold up the way they are presented.
The Kansas ruling you cite struck down that state's two-thirds requirement for submitting an Article V application. It concerned the legislature's power to apply for a convention. It did not address whether states may limit delegates, and it was decided in favor of the convention's supporters, not against them. [ https://caselaw.findlaw.com/court/us-dis-crt-d-kan/117911786.html ]
As for Federalist No. 40, it does not show Madison “confessing” a runaway. He wrote that the Convention's powers "were merely advisory and recommendatory" and that its plan was "of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed." That states that the Convention's work carried no force until the people approved it, which is the very ratification wall this post describes. Madison then closed that essay by stating that "the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it." [ https://avalon.law.yale.edu/18th_century/fed40.asp ]
The record is available to anyone who wants to read it and is why I always offer URLs in the posts and here in this comment.
KW
Another great analysis of Convention of States and the fear mongers. Thank you for expanding on Cordell's statement.
I have read other comments on this article. One individual appears to have never been in a State legislator's policy discussions; otherwise he would know how almost all the legislatures operate within Mason's Parliamentary Rules when discussing and choosing to vote on bills and resolutions which insures the process will be in a very similar orderly action. There have already been multiple pacts by convention between States on various issues over the years; including in the last ten years several simulated Article V Convention of States which all 50 States had participants in attendance. Apparently he is not aware of the 20+states that have passed bills to restrict what the delegates/commissioners can discuss at a Convention of States with potential fines or even criminal charges if they vary from their State Resolution. These type restrictive bills have been held legal by a former legal case in Washington State regarding a couple of Presidential Electors who cast different votes than what the Washington law required. The Supreme Court stated the Washington policy was solid in fining and disqualifying those Electors per their legislation written policy. The Kansas challenge was from earlier legislation passed in their State legislation that required a 2/3rds vote to pass an Article V Convention of States Resolution through both chambers This was not what Article V in the U S Constitution required. This went to court and was defeated so the Kansas legislature was then able to become the 20th State to pass the similar Resolution that 19 other States had already passed.
Eric, you raise a very important point. The suggestion that convention delegates are uncontrollable is specious in that it assumes that convention delegates are less subject to rules of order than legislators elected to deliberate for the people.
Mr. Whaley's question assumes convention opponents distrust the states. We do not. We trust state legislatures operating under clearly defined constitutional procedures. More importantly, we trust what the Founders repeatedly taught: liberty depends upon an informed and engaged people. Government cannot be expected to obey a Constitution that the people themselves do not understand. The Founders did not tell us to rewrite the Constitution every time politicians ignored it. They told us to learn it, defend it, and hold public officials accountable. Legislators are human. They respond to elections, pressure, and public involvement. That is where we have failed, and that is where the real solution lies.
This is the central flaw in the Article V movement. The Founders never taught that the remedy for constitutional disobedience was constitutional amendment. They gave us elections, federalism, state governments, separation of powers, and an informed citizenry capable of demanding compliance. The answer to officials ignoring the Constitution is enforcing the Constitution—not rewriting it.
Mr. Whaley also blurs a critical distinction. Ratification and proposal are not the same thing. Ratification is a veto power exercised under clearly defined constitutional rules. A convention is an agenda-setting body operating under rules Article V never defines. How are delegates apportioned? How are votes counted? Who resolves disputes? The recent federal court ruling regarding Convention of States in Kansas proves states may not limit delegates to an Article V convention; delegate limitations are not enforceable! Can a convention determine its own authority? Article V answers none of those questions. The asymmetry is not in our minds. It is in the Constitution itself.
History reinforces the concern. The states called the Philadelphia Convention under their sovereign authority, and many prescribed specific mandates governing both the convention and ratification. Those delegate commissions carried the force of state law. Yet in Federalist No. 40, Madison defended departing from those mandates and treated them largely as advisory. Whether one applauds the outcome is irrelevant. The lesson is simple: delegates in convention may not consider themselves bound by restrictions imposed upon them.
That matters because today's Article V advocates make the same promise. We are told delegates will be controlled by applications, instructions, and state laws. Yet the principal historical example we possess demonstrates the opposite. We have historical evidence that delegate restrictions can be ignored. We have no historical evidence proving they can be reliably enforced.
Readers should also understand the perspective from which these arguments are being made. Mr. Whaley often presents his writings as balanced explorations of competing viewpoints. Yet his own published biography states that he is actively working to achieve fiscal restraints, term limits, and limits on federal power, and he has written directly for Convention of States advocating the Article V process to achieve those goals.
There is nothing wrong with advocacy. The problem arises when advocacy is presented as neutral inquiry. A reader who examines Mr. Whaley's published positions, stated mission, and Convention of States writings is compelled to question the neutrality of the presentation and the completeness of the arguments being offered. This is not the work of a detached observer. It is the work of a committed Article V advocate advancing a preferred outcome.
I do not distrust the states. I distrust asking Americans to gamble their Constitution on a process whose most important rules have never been settled in advance. The Constitution gives us detailed rules for ratification and almost none for a convention. That distinction is real. It is written into Article V itself.
One final question remains. If leading Article V advocates routinely present advocacy in the form of neutral inquiry, downplay legitimate concerns about delegate authority, and dismiss unresolved questions surrounding convention procedures, why should Americans assume those same tendencies would somehow disappear inside an actual Article V convention? Trust is earned through transparency and candor. Before entrusting our Constitution to a process with undefined rules, Americans should ask whether the conduct of its advocates has earned that trust.
JBS talking points. Too bad JBS failed their primary organizational foundation goal to thwart communism in America.
I am not a JBS Member. Thank you for conceding to my statement as you offer no rebuttal.
From my reading of his post ,I can see nowhere were he claimed you were a member of JBS. What he stated is that your arguments aligned with JBS
If you know anything about the article 5 convention promoter specifically the convention states people they’re hyper partisan, and they gaslight the JBS people all the time. I am perfectly comfortable with my responses previously in this thread, the JBS angle is completely stupid and irrelevant. The issue should be discussed on the facts of the issue and comments about JBS are not that. So moving on to guard the constitution….
I later learned that Mr. Meehan is, sadly, the person who gave the JBS all those talking points. Bottom line on the runaway issue is that it wasn't believed in 1787/88 by the 65% of the 1648 delegates that assembled to discuss and ratify the Constitution. Those who didn't approve had other issues like taxation, a standing army and lack of a bill of rights. The lie of the runaway convention wasn't on the radar as truthful and ought not be believed today.
We’ve already addressed this comment before and it’s simply factually not documented and true. There’s plenty of delegates that discussed the fact that the 1787 convention exceeded their authority. Here’s the important point the facts of the facts and speak for themselves. You don’t have to take a percentage of the delegates, raise your hand survey and their opinions the analysis makes the case for itself. 10. States had specific limits on what was required to come out for ratification article 7 of the constitution clearly betrayed that quad Erich demonstrate we have a runway. It’s really revealing and dangerous that you article 5 convention promoters over and over and over and over refused to see the fox and just bang the drums on your institutionalized deception it pretends legitimate concerns for a future convention. Think about that.
Here’s another thing it doesn’t matter who gave who or what organization any arguments or information the arguments are solid researched and validate so you could talk about personalities and organizations all you want but those of us out here that know the issue you’re gonna keep talking about the facts.
Text out of context is a pretext and that is how you present Madison's comments from #40 Federalist papers. As Madison said, "no foundation".
Very important perspective Ken, glad you posted this.
Under Article V, neither Congress nor a state called convention ratifies proposed amendments, therefore. I foresee that should a convention be called, competing amendments will appear and enter the ratification process. When visibility of convention proposed amendments happens, Congress will work to blunt any features they as politicians find undesirable and compete with wording they favor. We have an historical event suggesting just such a situation.
The 27th Amendment was the only constitutional amendment to be certified by the congressional archivist, Don Wilson. On May 7, 1992, Michigan was the final state to ratify the 202yr old amendment. Congressional leaders wanted to meddle in the ratification process and suggested Don Wilson forgo his duty and allow Congress to determine how to proceed. Nine days later, May 18, 1992, Don Wilson rejected the congressional leadership suggestion and announced the completion of the ratification process. Two days later May 20, 1992, Congress voted to accept the amendment as it was. Don Wilson's action preserved the integrity of the ratification process for future operation.
Of course! This is only logical.
If you trust thirty-eight states to reject a bad amendment, why don't you trust those same states to participate in proposing one?
The fear of a "runaway convention" is understandable, but it overlooks a critical distinction. An Article V Convention can only propose amendments; it cannot ratify them. The real safeguard is, and always has been, the requirement that three-fourths of the states approve any amendment before it becomes law.
The Framers included the convention process because they understood that Congress might someday refuse to restrain itself. Article V gives the states a constitutional pathway to act when Washington will not.
Whether one supports or opposes a convention, the burden is to explain why the states can be trusted as the final guardians of the Constitution but not as participants in the amendment process itself. The Constitution places its faith in the states on both paths. Perhaps we should as well.
In 1787, the requirement was that 13 states and the Continental Congress ratify changes. How did that work out?
No Founder EVER said to amend the Constitution when it is being violated.
In 1786 the Annapolis Convention called for a convention of the states to address the shortcomings of the Confederation and meet the "exigencies of the union". In 1786 New Jersey showed up a that convention with a new plan for government in hand, as they also did in 1787, along with Virginia who had a plan of their own to propose. After New York turned down the 1783 impost tax suggested by the Confederation, all the states recognized the Confederation was a failed format to govern with the unanimous provision in Article XIII. The Article XIII unanimous provision of the Confederation was fulfilled 3/1/1788 whereby the new plan of government was agreed to by all the Confederated states, three months (6/21/1788) before the ninth state ratified the new constitution.
"the new plan of government was agreed to by all the Confederated states"
REALLY? Please provide the original source for that invalid assumption.
It was not the Articles of Confederation the 1787 Convention was called under. It was the residual sovereignty of the states. In their individual delegate commissions they applied an identical requirement.
Article 7 of the draft US Constitution only required 9 states to ratify.
In Federalist 40, Madison acknowledged the delegates ignored their restrictions: "It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention...."
"Can it then be said that the late convention did not assume powers to which they had no legal title? On the contrary, Sir, it is clear that they set aside the laws under which they were appointed, and under which alone they could derive any legitimate authority, they arrogantly exercised any powers that they found convenient to their object, and in the end they have overthrown that government which they were called upon to amend, in order to introduce one of their own fabrication."
-- Robert Whitehill in the Pennsylvania Ratifying Convention, 28 Nov. 1787
"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. It may be said, that the States cannot ratify a plan not within the purview of the Article of the Confederation providing for alterations and amendments.”
— Monday June 18th, 1787, Madison, James (2005-12-01). Journal of the Federal Convention
Three documents emerged from the 1787 convention. The new U.S. Constitution, a ratification and transition resolution and a letter from George Washington to the President of the Confederation Congress. The Confederation Congress agreed to the ratification and transition resolution and passed it along with the new constitution to the states. On 3/1/1788 Rhode Island was the thirteenth state to sign the resolution.
The Library of Congress preserves and provides access to the historical records of the U.S. Constitution’s creation, including the Resolution of Congress of 28 September 1787, which marked the formal step toward ratification.
The Resolution of 28 September 1787
On 28 September 1787, Congress convened and unanimously resolved that the report of the Constitutional Convention, along with its resolutions and accompanying letter, be transmitted to the legislatures of the several states so they could submit it to a ratifying convention of delegates chosen by the people in accordance with the Convention’s own resolves.
This resolution effectively set the stage for the ratification process, ensuring that each state would have the opportunity to debate and vote on the proposed Constitution.
Really.
Bill, there are several important historical inaccuracies in your summary.
First, Congress did not approve the Constitution or the Convention's proposed ratification plan. After two days of contentious debate, Congress reached a compromise and unanimously agreed only to TRANSMIT the Convention's report to the states. Richard Henry Lee explained that "unanimously" referred only to transmitting the documents—not approving them. Even George Washington acknowledged that many readers would mistakenly believe Congress had endorsed the Constitution. That misunderstanding has persisted for over two centuries.
Second, Rhode Island did not support the Constitution in 1788. It refused to send delegates to Philadelphia, overwhelmingly rejected the Constitution by statewide referendum in March 1788 (2,708–237), and did not ratify until May 29, 1790.
Most importantly, the historical record demonstrates why the phrase "runaway convention" exists.
Of the twelve states that sent delegates to Philadelphia, ten expressly prescribed delegate commissions directing their delegates to report alterations that were to be agreed to by Congress and confirmed by the states. The February 21, 1787 congressional resolution contained substantially the same direction. Yet the Convention instead proposed Article VII, establishing an entirely different ratification process requiring conventions in only nine states.
Those delegate commissions were not casual suggestions. They were legal commissions issued by sovereign states. Madison did not deny that the Convention departed from them. In Federalist No. 40, he defended doing so by arguing that the delegates' powers were "merely advisory and recommendatory."
That is precisely why many constitutional scholars and historians describe Philadelphia as a runaway convention. Whether one believes the outcome benefited America is a separate question. But the documentary record shows that many of the delegates acted beyond the written authority prescribed by their appointing states.
The historical documents—not modern talking points—should guide this discussion.
Sources: The Documentary History of the Ratification of the Constitution (Kaminski et al.); Pauline Maier, Ratification; Federalist No. 40; February 21, 1787 Resolution of Congress; September 28, 1787 Resolution of Congress; Rhode Island ratification records and referendum.
What is accurate is that the Congress approved the procedure, and Rhode Island also approved the resolution 3/1/1788.
From the Journal of Public Law and Policy, volume 40, April 2017,
by Michael Farris.
"Specifically referencing the accompanying resolutions (“Ratification
and Transition”), Congress limited its approval to the
process itself, rather than the Constitution on its substance.
(Journals of Congress September 28, 1787
The editors of the encyclopedic Documentary History of the
Ratification of the Constitution summarize the approach taken
by Congress thusly:
On 28 September Congress reached a compromise. It resolved
“unanimously” that the Constitution and the resolutions
and the letter of the Convention be sent to the states
with only a suggestion that the states call conventions to
consider the Constitution. This compromise followed the
recommendation of the Convention.
Congress only approved the new process and sent the matter to
the state legislatures with recommendation that they do the same."
I expect you to discredit Michael Farris, as you have done to Ken Whaley, and I can now say I've communicated with the person who ill advised the JBS on the truth surrounding the 1787 convention. Since I see you as inveterate, there is no point in responding to my post.