John Dickinson defended the amendment process publicly in 1788. His argument was precise, his language was unambiguous, and it has never been answered.
Your argument succeeds because it does not rely on modern political slogans. It forces the debate back into the constitutional text, the Founding-era record, and the actual structure of Article V itself. That matters, because much of the contemporary opposition to an Article V convention depends less on constitutional language than on accumulated institutional fear.
The central point is difficult to escape: the Framers did not create one amendment process. They created two. One runs through Congress. The other runs through the states. The second pathway exists precisely because the Framers understood that the federal government might someday become resistant to structural correction. An amendment mechanism controlled entirely by Congress would have defeated the purpose.
That is why Dickinson’s language is so devastating to the modern argument. “They MUST call a Convention.” Not “may.” Not “if Congress approves.” Not “if political conditions are favorable.” MUST. The word is fatal to the theory that Congress possesses discretionary authority to ignore valid state applications indefinitely.
Opponents of an Article V convention often speak as though refusing to use the process somehow protects constitutional stability. But Dickinson anticipated that argument too. The mechanism was specifically designed to allow correction “without shaking the stability of the government.” In other words, the danger was not the existence of the amendment process. The danger was denying peaceful constitutional means of reform until political pressure accumulated outside constitutional boundaries.
That point deserves far more attention than it receives.
A constitutional system that provides no workable method of self-correction eventually forces conflict into extra-constitutional channels. The Framers understood this perfectly. Article V was not inserted as decorative parchment language. It was intended as a pressure-release valve inside the constitutional order itself.
The “runaway convention” argument also weakens considerably under close examination. Critics invoke 1787 as though it were proof that any convention automatically escapes legal limits. But the analogy breaks down immediately once the ratification structure is examined.
The Philadelphia Convention operated under an entirely different constitutional framework. Under Article V, no proposal becomes law unless three-fourths of the states ratify it. Thirty-eight states are not a ceremonial safeguard. They are the safeguard. A convention can propose radically unpopular amendments all day long; it cannot impose them. The states remain sovereign gatekeepers at the decisive stage of the process.
That distinction destroys the common claim that a convention could simply rewrite the Constitution by itself. It cannot. The convention possesses proposal power, not ratification power.
And this is where the modern debate becomes revealing.
Many critics speak as though the states are incapable of exercising judgment during ratification, while simultaneously insisting that Congress must retain practical control over whether the convention process can even begin. But that flips the constitutional design upside down. Article V was written on the assumption that the states were competent constitutional actors, not administrative subsidiaries of Washington.
Dickinson understood this clearly. So did the Framers generally. Federalism was not merely a division of labor. It was a division of sovereignty.
The deeper issue beneath this debate is whether the states still possess meaningful constitutional agency at all. If Congress may simply ignore applications once the threshold is met, then the convention clause is functionally dead. And if one half of Article V can be nullified through congressional inaction, then the constitutional balance envisioned by the Framers has already been altered without amendment.
That is why your phrase “constitutional amputation” lands so effectively. Because that is exactly what is being proposed: the removal of one of the Constitution’s enumerated self-correction mechanisms through custom, delay, and institutional resistance.
Dickinson’s warning about bad-faith opposition is equally important and often neglected. He was careful not to condemn every skeptic. He recognized sincere concern. But he also recognized that powerful interests benefit from convincing the public that the states should never use the tools the Constitution gave them.
That concern feels remarkably modern.
An Article V convention is frequently described as inherently dangerous, yet the concentration of power in federal institutions is often treated as normal, inevitable, or even desirable. Dickinson would likely have viewed that inversion with alarm. The amendment mechanism existed precisely because the Framers did not trust power to permanently police itself.
And ultimately, that is the strongest argument in your essay: Article V was not an accident. It was intentional architecture.
The Framers expected future generations to use it if circumstances required it. Dickinson defended it publicly. He explained its safeguards publicly. He explained Congress’s obligation publicly. And he explained the states’ responsibility publicly.
The modern argument against Article V often sounds less like constitutional interpretation and more like institutional fear of the constitutional system operating exactly as designed.
Thank you for taking the time to write such a thoughtful response.
What I appreciate most is not whether every point fully agrees with my conclusions, but that you engaged with the argument itself and followed it back into constitutional text, structure, and Founding-era thought. That is exactly what I hope these posts encourage.
You raised supporting points, challenged assumptions, and pushed the discussion into larger questions about federalism, sovereignty, amendment authority, and the balance between constitutional safeguards and institutional power. That kind of engagement matters because serious ideas should be examined, questioned, tested, and even pressed hard.
America was never built upon the expectation that everyone would think alike. It was built upon citizens willing to reason together, disagree honestly, defend their positions, and continue the discussion without becoming enemies. Something that seems to be sorely missing in America recently...
Whether readers ultimately agree with me completely, partially, or not at all, if a post causes someone to think deeply and respond with conviction and passion, then it has done something worthwhile.
You write so much which is not true. The 1787 Convention was not called under the authority of the Articles of Confederation because they had no such authority. It was called under the sovereignty of the individual states.
10 of the states mandated provisions similar to Article 13 of the Articles of Confederation in their delegate commissions. [https://csac.history.wisc.edu/the-constitutional-convention/convention-delegates/] Those instructions specifically required anything produced in the Convention must be ratified by the Continental Congress and legislatures of all 13 states.
Article VII of the new Constitution only required ratification by 9 states, specifically disobeying their limits. In Federalist 40, they admitted and rationalized exceeding their authority.
How you feel Dickinson is responsible for Article V convention in the Constitution is disturbingly departed from reality. George Mason made the declaration that such might be needed and then Mr. Govr. MORRIS & Mr. GERRY moved to amend the article so as to require a Convention on application of 2/3 of the states during the Sep 15, 1787 debate.
It is really sad and offensive that someone purports to represent themselves as an authority but publishes verbatim misinformation of the Constitution re-writers.
"10 of the states mandated provisions similar to Article 13 of the Articles of Confederation in their delegate commissions." This statement is not accurate. According to constitutional scholar Rob Natelson in his book, The Law of Article V, page 24 states "Nor was the convention restricted to proposing amendments to the Articles. Both the call and the commissions issued by ten of the twelve participating states empowered the convention to recommend any and all expedient changes to the "foederal constitution." for a complete review of the historical record, see Michael Farris, Defying Conventional Wisdom: The Constitution Was Not the Product of a Runaway Convention, 40 HARVARD J.L. & PUB. POL'Y 61 (2017) (https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2017/03/Farris_FINAL.pdf), also see more from Professor Rob Natelson at https://articlevinfocenter.com/
Farris is a joke. That paper by Farris omits essential information. He also painfully fills up all those pages with mind numbing imagination and flawed conclusions when all one needs to do is seek the delegate commissions (and actually read the FULL page of each) and then see Article VII of the Constitution and you can see how it was a runaway clearly.
The Founders admitted (and rationalized) in Federalist 40, that they exceeded their authority. They claimed their delegate commissions were only advisory, when earlier in 1787 they claimed the opposite. Ooops.
Farris has also been scheduled for debates and bailed at the last minute when he learns top talent is coming opposite him.
Convention of States and other Article V manipulators are being exposed. Get ready for more.
That statement is 100% accurate. Natelson does not tell the truth regarding the convention calls. His book "The Law of Article V" is marketing manipulation. You must read the entire delegate commission from each state. They had specific requirements for anything they produced and the Convention violated those. Stop following personalities and learn to check original sources. Here they are:
DE, GA, MD, MA, NH, NY, PA, SC, VA, CT (10) mandated provisions similar to Article 13 of the articles of Confederation. RI also advised
Connecticut Act Authorizing the Election of Delegates, 17 May 1787 -as they shall think proper, to render the foederal Constitution adequate to the Exigencies of Government, and the Preservation of the Union; and they are further directed, pursuant to the said Act of Congress, to report such Alterations and Provisions, as may be agreed to, by a Majority of the united States represented in Convention, to the Congress of the United States, and to the General Assembly of this State.
Delaware Act Authorizing the Election of Delegates, 3 February 1787 - reporting such Act or Acts for that Purpose to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several States, may effectually provide for the same
Georgia Act Authorizing the Election of Delegates, 10 February 1787 - reporting such an Act for that purpose to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states
Maryland Act Authorizing the Election of Delegates, 26 May 1787 - reporting such an act for that purpose to the United States in congress assembled, as, when agreed to by them, and duly confirmed by the several states
Massachusetts Resolution For Delegates to 1787 Convention - for the sole & express purpose of revising the articles of Confederation, and reporting to Congress & the several Legislatures, such alterations & provisions therein, as shall when agreed to in Congress, and confirmed by the States,
New Hampshire Act Authorizing the Election of Delegates, 27 June 1787 - and in reporting such an act to the United States in Congress, as when agreed to by them and duly confirmed by the several states, will effectually provide for the same
New Jersey Act Authorizing the Election of Delegates, 23 November 1786 - for the purpose of taking into consideration the state of the Union as to trade and other important objects, and of devising such further provisions as shall appear necessary to render the Constitution of the federal government adequate to the exigencies thereof.
New York Act Authorizing the Election of Delegates, 6 March 1787 - reporting to Congress and to the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the several states, render the federal constitution adequate to the exigencies of government and the preservation of the Union
North Carolina Act Authorizing the Election of Delegates, 6 January 1787 - That five Commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorised as Deputies from this state, to meet at Philadelphia on the first day of May next, then and there to meet and confer with such Deputies as may be appointed by the other states for similar purposes, and with them to discuss and decide upon the most effectual means to remove the defects of our foederal union, and to procure the enlarged purposes which it was intended to effect, and that they report such an act to the General Assembly of this state, as when agreed to by them, will effectually provide for the same.
Pennsylvania Act Authorizing the Election of Delegates, 30 December 1786 - adequate to the exigencies of the Union; and in reporting such act or acts for that purpose, to the United States in Congress assembled, [200]as when agreed to by them, and duly confirmed by the several states, will effectually provide for the same.
South Carolina Act Authorizing the Election of Delegates, 8 March 1787 - do join in reporting such an act to the united states in congress assembled, as when approved and agreed to by them, and duly ratified and confirmed by the several states, will effectually provide for the exigencies of the union.
Virginia Act Authorizing the Election of Delegates, 4 December 1786 - and in reporting such an Act for that purpose, to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same.
Rhode Island's Refusal to Appoint Delegates, 15 September 1787 | Rhode Island Reasons for Refusing to Appoint Delegates to 1787 Convention. - By the 13th. Article in the Confederation “every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of Confederation shall be inviolably observed by every State and the Union shall be perpetual; nor shall any alteration at any time 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
What is your definition of "exigencies"? Webster has it as "that which is required in a particular situation". And what is your definition of "feoderal constitution". From Thomas Sheridan's A Complete Dictionary of the English Language defining the legal meaning of "constitution" as "established form of government, system of laws and customs, particular law, establishment, institution" If the states wanted to specifically limit the scope to the Articles, they would have said "Articles". The scope and meaning of these words is important in this discussion. Only two states explicitly said the scope was limited to changing the Articles.
The recommendation from the Annapolis Convention which started the ball rolling was "to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Foederal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress Assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State will effectually provide for the same.
I'll leave off here because we aren't going to get any resolution if we can't agree on the definition of the words "exigencies" and "constitution".
If you reread my prior post carefully, nowhere did I dispute the meaning of “exigencies.” I largely concur with your point. It was a legal and political term referring to the emergencies and deficiencies confronting the Union at that time.
Several delegate commissions absolutely referenced the “exigencies of the Union.”
But that is not the central issue you are avoiding.
What you continue to ignore is the full context and explicit limitations contained throughout the delegate commissions themselves. Ten states specifically instructed that whatever emerged from the convention had to be approved by Congress and ratified by all 13 state legislatures. Rhode Island — despite refusing to attend — reiterated the same requirement and admonished the convention accordingly.
That matters.
Because the draft Constitution’s Article VII discarded those requirements entirely and substituted ratification by only nine states.
That was a direct departure from the commissions and instructions under which the delegates were sent.
Many commissions also specifically referenced revising or amending the existing federal system to address the exigencies — not abolishing the existing structure and replacing it with an entirely new top-down national framework coupled with a completely altered ratification process.
You cannot selectively emphasize the word “exigencies” while pretending the ratification instructions in the same commissions somehow carried no authority.
Those instructions were ignored.
The delegates themselves effectively admitted this problem, which is precisely why Madison attempted to justify it afterward in Federalist 40 by arguing the commissions were merely “advisory.”
But that argument creates an enormous problem for modern Article V advocates.
Because if the explicit delegate instructions of 1787 were merely advisory, then any supposed restrictions placed on delegates to a future Article V convention would likewise be merely advisory.
That is the quandary Convention of States advocates, Robert Natelson, Mark Meckler, and others never answer honestly.
Mark Meckler repeats this exact argument constantly in interviews and debates — focusing narrowly on words like “exigencies” while routinely omitting the remainder of the delegate commissions and their explicit ratification limitations. That is not serious scholarship. At best, it is incomplete advocacy. At worst, it is moral and intellectual malpractice.
The 1787 Convention absolutely exceeded the confines of its commissions and authority. Historical records demonstrate that plainly.
And based on that precedent, no one can honestly guarantee that a modern Article V convention would somehow remain confined once convened.
More importantly, no Founder ever argued that the Constitution should be amended merely to force government officials to obey the Constitution already in place.
The Framers repeatedly gave other remedies for usurpation and abuse.
Article V was designed for needed amendments addressing actual defects in the constitutional structure itself when Congress refused to propose them — not as a tool to “fix” government officials refusing to obey the supreme law already written.
George Mason made this point early in the Convention on June 11, 1787, when he stated amendments would address “defects.”
Those are legitimate amendments.
Government refusing to obey the Constitution is not a defect in the Constitution. It is a defect in public officials and in the people tolerating the violations.
I understand cognitive dissonance is powerful. We encounter it constantly with Convention of States supporters who have only been exposed to one side of this issue. But many eventually discover they were never given the full historical record, the complete delegate commissions, or the full implications of Federalist 40.
And when they finally do, many walk away from the Convention of States movement entirely.
If you agree that the scope of the action under "exigencies" was acceptable then the next issue as you point out is the completion of the rest of the instructions, namely: to submit to the confederation congress for approval. The general (or exact) phrasing being thus:
"and in reporting such act or acts for that purpose, to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states, will effectually provide for the same."
Are these following post-convention events accurate?
Delivery: William Jackson, the secretary of the Convention, carried the documents to New York and delivered them to Charles Thompson, the Secretary of the Confederation Congress.
Documents Submitted: The submission included the proposed Constitution, a "Ratification and Transition" Resolution regarding the plan for ratification, and a formal letter of transmission signed by George Washington.
Congressional Action: The documents were read to Congress on September 20, 1787, with formal consideration beginning on September 26.
Transmission to States: On September 28, 1787, Congress unanimously resolved to transmit the Convention's report and resolutions to the state legislatures so they could be submitted to state ratifying conventions.
If those events are accurate, and if the delegates were within scope to do whatever was necessary for the exigencies of the union, and they submitted their work as instructed to the confederation congress for approval, how are they somehow guilty of violating their commissions?
You have a consistent tendency to skip over critical distinctions and then shift the discussion to adjacent issues, which muddies what are actually very precise legal and historical questions.
I did not agree that the full scope of the Convention’s actions was acceptable.
I agreed that the term “exigencies,” as used in many delegate commissions, gave the delegates broad authority to DISCUSS and CONSIDER solutions to the problems facing the Union.
That is entirely different from claiming they were authorized to violate the explicit conditions and ratification requirements contained in those same commissions.
The second half of the commissions is where the problem arises.
As previously stated and linked, ten state commissions specifically REQUIRED that any proposed amendments be approved by the Continental Congress AND ratified by ALL 13 states. The draft Constitution submitted by the Convention ignored those requirements entirely. Article VII created a completely new ratification process requiring only NINE states through conventions of “the People,” not the state legislatures.
That is the very definition of exceeding delegated authority and producing a runaway convention.
It does not matter that Congress later transmitted the document to the states. That is the rhetorical pivot Convention advocates repeatedly attempt, just as Michael Farris does: “Well, Congress transmitted it and the states eventually ratified it anyway.”
He consistently and incorrectly attempts to portray congressional transmission as congressional approval or ratification. That is incredibly deceptive. The historical record is crystal clear that some members of Congress attempted that exact political manipulation in 1787, and it was specifically rejected. Congress did NOT ratify or approve the Constitution. Congress merely transmitted it to the states, and the historical record expressly reflects that distinction.[1][2]
The 1787 Convention itself was commonly referred to as a “Convention of States.” Ironically, the modern Convention of States organization proudly uses that exact phrase for its own limited liability company while simultaneously trying to convince the public that a so-called “Convention of States” somehow means the states control the convention process.
They do not.
An Article V convention is called by Congress, and Congress necessarily passes the laws governing the convention process as an incident of calling it. Congress has attempted roughly 41 times throughout American history to pass legislation defining and regulating an Article V convention process. Though none ultimately became law, that is exactly what will happen if such a convention is ever called.
So advocates can play semantic games with terms like “constitutional convention” and “Convention of States” all they want, but the undeniable historical reality remains this:
The 1787 Convention itself was a Convention of States, and it exceeded the confines of its delegated authority.
That is historical precedent.
And if usurpation was tolerated then, there is absolutely no rational basis to guarantee usurpation would not again be tolerated in the future.
Congress did NOT approve the Constitution.[1][2]
Congress merely transmitted it.
That distinction matters enormously.
In fact, debates within Congress specifically reflected concern that transmission might be falsely portrayed to the public as congressional approval, and portions of the congressional discussion were effectively suppressed from the official journal.[3]
And once the ninth state ratified on June 21, 1788, the new government simply began operating, leaving the remaining states outside the Union unless and until they later joined.
That was not what many of the commissions authorized.
Further, Article VII bypassed the state legislatures entirely and instead appealed directly to conventions of “the People.” This was another direct departure from the commissions issued by many states.
The delegates almost certainly understood why this was necessary politically. Having exceeded the confines of their authority, they appealed instead to what Federalist 49 describes as the ultimate fountain of power: the people themselves.
Again, none of this changes the central point:
The Convention exceeded the ratification limitations and procedures contained in numerous delegate commissions.
That is historical fact.
And once you acknowledge that reality, no honest person can guarantee that a future Article V convention would somehow remain confined merely because modern advocates promise it will.
End Notes:
[1]. Congress having received the report of the Convention lately assembled in Philadelphia.
"Resolved unanimously, That the said report with the resolutions and letter accompanying the same be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case."
-- [Journals of Congress, Friday, 28 Sept.]
"The next day—Friday, September 28—Congress approved a rewritten version of Clark’s earlier resolution. It acknowledged receipt of the Convention’s report, then “Resolved unanimously” to transmit the Constitution and the accompanying documents to the state legislatures for submission “to a convention of delegations chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case.”
"The word “unanimously,” Richard Henry Lee explained to George Mason, referred only to the decision to transmit the Constitution and related documents to the states, but it was inserted “hoping to have it mistaken for an unanimous approbation” of the Constitution itself. He was correct: Even Washington thought that the “apparent unanimity” of Congress would mislead people into thinking it had endorsed the Constitution. “Not every one has opportunities to peep behind the curtain,” he wrote Madison; “and as the multitude often judge from externals, the appearance of unanimity in that body, on this occas[io]n, will be of great importance.”24
-- Merrill Jensen, John P. Kaminski, et al., eds., The Documentary History of the Ratification of the Constitution. Madison, Wisconsin, 1976–. (DHRC) I: 340, and Lee to Mason, New York, October 1, 1787, at 345. Washington to Madison, Mount Vernon, October 10, 1787, DHRC XIII: 358. | Found in: Maier, Pauline. Ratification: The People Debate the Constitution, 1787-1788. Simon & Schuster
[2]. On 26 and 27 September Congress debated the manner in which it would send the Constitution to the states. Critics of the Constitution wanted it transmitted to the state legislatures with an indication that the Convention had violated Article XIII of the Articles of Confederation and the congressional resolution of 21 February 1787….
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...
The general public became aware of the debate in Congress through the publication of two widely reprinted Antifederalist items. On 24 October “Centinel” II stated that after “two days animated discussion,” the proponents of the Constitution dropped their attempt to have Congress send the Constitution to the states with its approval. By cleverly wording the resolution of transmittal, however, they tried to mislead the public into believing that Congress had “unanimously” approved the Constitution (CC:190). On 6 December the Petersburg Virginia'Gazette published Lee’s amendments and his letter of 16 October to Edmund Randolph which reiterated the charge made by Centinel.
[3]. Abraham Clark: The motion by Mr. Lee for amendments will do injury by coming on the Journal, and therefore the House, upon cool reflection, will think it best to agree to send it [the Constitution] out without agreeing.
Thank you for engaging with this post and for the historical detail you brought to the response. Serious readers who hold RFP to a precise standard make the work better, and that is worth acknowledging. My thanks!
You are absolutely correct on a specific point that truly matters. The closing line of the post reads "What Dickinson built into the Constitution." That is imprecise and it should not have been written that way. The convention mechanism in Article V was the result of George Mason's insistence that Congress could never be trusted to propose amendments limiting its own power, and of the motion by Gouverneur Morris and Elbridge Gerry on September 15, 1787 to add the state convention pathway. Dickinson had left the Convention the day before due to illness and was not present for that debate. Mason, Morris, and Gerry deserve that specific credit, and the post should have said so. That line will be corrected though obviously I cannot correct the emails already sent.
What the post actually argues, and what stands without qualification, is that Dickinson defended the Article V amendment process publicly in 1788 in the Fabius Letters. The authenticated quotes from Fabius Letter VIII are real, the MUST argument is real, and his public defense of the convention mechanism as both constitutionally sound and congressionally obligatory is documented in authenticated primary source text. That argument is what the post is built on and is accurate.
On the question of the Convention's authority and the delegate commissions, your point has historical merit and Federalist 40 does indeed confirm that Madison himself acknowledged the Convention exceeded its strict mandate. That is the historical record and I don’t dispute it. The post's argument is that the sequence of 1787 cannot be repeated under Article V because the mechanisms and safeguards are structurally different. That argument stands regardless of how one characterizes the Convention's original authority.
The correction to the "built into" language will be made. Thank you for pressing on this.
No sir. Mason's objection had nothing to do with the government limiting its own power. It had to do with Congress refusing to propose NEEDED amendments. The literal text from Madison's notes of the Convention for said discussion on Sept. 15, 1787 clearly sets that out. This is the core argument that convention promoters use and it is clearly invalid.
"Col: MASON thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case."
The correct interpretation of this text is that amendments of the proper kind would not be possible if the government became opressive.
Mason told us clearly at the front end of the Convention what such amendments would be:
Mason, June 11, 1787, in Convention:
"Col. MASON urged the necessity of such a provision. The plan now to be formed will certainly be defective , as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account."
Several other references clearly establish that amendments fix defects, not usurpation. The first two Article V convention petitions (Virginia and New York) were made before the Constitution was implemented. A new government can not be restrained or be tyrannical before it ever exists.
Article V Convention advocates have (and continued to) exploited a huge play on words that is not accurate and is deceptive.
As to an Article V convention running away: Yes, an A5C is exactly the same as the 1787 as far as rules were prescribed, and then violated, and then The People ratified those usurpations. The same absolutely can happen again.
Pennsylvania convention of 1873 “When the Pennsylvania convention of 1873 proposed a new constitution, along with changes in the bill of rights that went beyond what was sanctioned in the enabling act, suit was filed to prevent submission of the constitution for popular ratification . The Pennsylvania supreme court admitted that the convention had acted ultra vires, but before the case was decided the constitution had been submitted to the voters and approved by a large majority. Said the court: “The change made by the people in their political institutions, by the adoption of the proposed Constitution … forbids an inquiry into the merits of this case. The question is no longer judicial.”
— Constitutional Brinkmanship, Amending the Constitution by National Convention, By Russell L. Caplan, Oxford University Press, 1988, Page 155
A convention is not needed, and in no way can work to limit usurpation.
That the several groups pushing for an Article V convention sometimes boldly lie, and then attack challengers, tells a great story. The Founders were clear:
“Then it is important to strengthen the state governments: and as this cannot be done by any change in the federal constitution, (for the preservation of that is all we need contend for,) it must be done by the states themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the general government. The only barrier in their power is a wise government….”
-- Thomas Jefferson To Archibald Stuart written December 23, 1791
Thank you again for engaging here, and before anything else, thank you for your service in the Air Force. In my book that is a substantial achievement!
I also spent some time reading through your Substack work and your Guard The Constitution material. It is clear that your concern for preserving the Constitution is sincere and that you have invested a great deal of time studying and defending your position. It also became clear to me that we arrive at this issue from fundamentally different conclusions regarding Article V itself, and I suspect neither of us is likely to persuade the other. And that's perfectly fine. Serious disagreement is part of the American tradition, wouldn't you agree?
I do want to briefly address one statement because I believe it overstates the historical case:
"An Article V convention is exactly the same as 1787."
Respectfully sir, it is not.
The Convention of 1787 operated under a very different structure:
• It was called under the Articles of Confederation rather than under an express constitutional convention mechanism.
• Delegate instructions varied from state to state and questions of authority were disputed even at the time.
• The Convention altered the ratification process itself, moving from unanimity under the Articles to the nine-state requirement contained in Article VII.
An Article V convention exists under a different framework:
• It is expressly authorized in constitutional text.
• The threshold for calling it is prescribed.
• Ratification requirements are prescribed.
• A convention may propose amendments, but cannot itself amend the Constitution.
Now, one can absolutely argue about risks, delegate limits, procedures, or possible overreach and those are legitimate discussions. But "exactly the same" asks more of history than history itself appears willing to give us.
How an Article V convention would actually operate is remarkably similar — nearly identical in practical function — to the 1787 Convention.
The 1787 Convention was not “called under the Articles of Confederation." The Articles contained no mechanism to call such a convention and granted no authority to create one. The convention was called by sovereign states acting in their reserved capacity as states.
Further, the historical record directly undermines the claim that delegate limits or instructions would somehow control a modern Article V convention.
Ten states issued explicit delegate commissions and instructions requiring that any proposed changes be approved by all state legislatures and Congress. Yet the delegates exceeded those instructions and instead reported out an entirely new Constitution with a completely different ratification process under Article VII.
Yes, Federalist 40 attempts to argue that the delegate powers were merely “advisory and recommendatory.”[1] But if Convention advocates rely on Federalist 40 to claim the 1787 delegate commissions were non-binding, then they simultaneously destroy their own argument that modern delegate limitations, “faithful delegate” laws, or Convention of States restrictions would somehow be enforceable today.
That is the contradiction Article V advocates can never answer.
If the explicit delegate instructions of 1787 were merely advisory, then any restrictions placed on delegates to a future Article V convention would also be merely advisory from the very moment the convention convenes.
You cannot use Federalist 40 to dismiss the 1787 precedent while simultaneously claiming modern delegate restrictions would magically become binding and enforceable.
The argument collapses under its own weight.
Nor does the mere fact that Article V is “authorized” in constitutional text solve the problem. Article VI — the Supremacy Clause — is also plainly written in the Constitution, yet large portions of the federal government openly violate it every day. Simply pointing to constitutional text does not guarantee obedience.
Likewise, pointing to “prescribed ratification requirements” proves nothing. The Articles of Confederation prescribed unanimity for amendment. The 1787 Convention ignored that requirement and substituted Article VII’s nine-state ratification scheme instead.
That is historical fact.
And the claim that “a convention can only propose amendments” ignores what actually happened in 1787. The delegates exceeded their commissions [2], altered the ratification structure itself, and then unleashed an enormous political and propaganda campaign to secure adoption.
Federalist 49 itself acknowledges that ultimate sovereign authority rests with the people. Why should anyone assume political pressure, fear campaigns, media influence, and procedural manipulation could not again be used to secure dangerous amendments or structural changes?
History demonstrates otherwise.
Article V advocates repeatedly insist that no “bad amendments” could ever be ratified, yet many of the same advocates openly argue that the 16th and 17th Amendments — both successfully ratified — were disastrous mistakes that should be repealed.
That admission alone destroys the “nothing dangerous could pass” argument.
You stated I was overstating history. Respectfully, I would suggest the opposite. I have provided original delegate commissions and primary historical sources. You responded largely with modern Article V commentary.
I would strongly encourage anyone studying this issue to examine the actual historical records, delegate instructions, Convention debates, and ratification history firsthand before accepting the assurances of modern Convention of States organizations.
[1] “...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; and that the latter have accordingly planned and proposed a Constitution....” — James Madison, Federalist No. 40
[2]. Instructions to the Convention Delegates, Center for the Study of the American Constitution, University of Wisconsin–Madison
Thank you again for taking the time to engage so deeply with the topic and for continuing to bring primary-source material into the discussion. Serious constitutional disagreement is not something I dismiss lightly.
I also want to acknowledge areas where I believe we share common ground.
I agree that the Convention of 1787 deserves careful study and should never be casually brushed aside. History matters, and the concerns raised by delegate conduct, competing instructions, political pressure, and human ambition are all fair considerations for anyone discussing Article V seriously.
I also agree that constitutional text alone does not guarantee perfect obedience. Constitutional systems ultimately depend upon institutions, political will, and citizens willing to insist that constitutional boundaries still matter.
Where I believe we continue to part company is in the conclusion drawn from those concerns. I do not view an Article V convention as functionally or structurally identical to 1787, even while recognizing that 1787 offers important lessons and cautions. The existence of an explicit constitutional mechanism, prescribed thresholds, and state ratification requirements strikes me as a meaningful distinction, even if one remains skeptical of how they would operate in practice.
At this point, I suspect thoughtful readers have enough before them to examine the sources, consider the arguments, and reach conclusions for themselves. As it should be.
In any event, I appreciate the exchange and the seriousness with which you approach the subject.
Excellent, understandable explanation that takes away the fears of a runaway Art V convention. Based on the solid history of what the creator(s) meant Art V to say, be and do. Every legislator who voices those concerns should either have this blog read to them or be handed a copy.
Shawn, I have to say that for you to use the term ConCon in your comment surprises me. A "ConCon" (aka a Constitutional Convention) happened once and as has been stipulated, went outside its bounds. But an "Article V Convention" is a completely different thing that has completely different rules, guidelines, and most importantly, a completely different ratification requirement. A convention called under Article V proposes amendments. It does not ratify them. Three-fourths of the states must approve anything it produces before a single word becomes constitutional law. The 1787 Convention had no such constraint. That structural difference is precisely why the two cannot be equated, and precisely why the "it happened before" argument does not hold under examination.
People are waking up that the Article V promoters are lying to them AND in doing so, their movement is sucking time, energy, and $$$ from the actual actions The Founders told us to take to keep the federal government in the box it came in.
The term ConCon may not be technically correct, however, in the early days of the Convention of States movement, Mark Meckler even used the term himself.
"The constitutional convention was intended as a check and balance on the power of Congress, just as the exclusion of the president from the amending process was seen as a limitation on executive power."
-- Tea Party Patriots: The Second American Revolution, Mark Meckler and Jenny Beth Martin, Page 105
The 1787 Convention's restraints were different, even more strict, requiring 13 of 13 states to ratify through their legislatures and the Continental Congress. The draft Constitution produced by the Convention only required 9. So, the guard rails, guidelines, etc. were knowingly disobeyed.
The point is not "the restrictions for an A5C are different." It is that restrictions are routinely disobeyed. Article VI of the US Constitution, the Supremacy Clause is clear that it is the "Supreme Law of the Land." Now, we agree such is being routinely disobeyed, but you somehow assert that a convention where we have history of rules not being obeyed, yet an A5C will somehow magically follow the rules when the Constitution itself is not being obeyed? That is quite a farcical belief is it not?
The trend toward aggrandizement of power at a convention is supported by modern experience in the states. When delegates are presented with the choice of writing a new constitution or submitting a number of amendments to the existing document, they have exhibited a desire to become part of history by framing a new constitution.
Source: The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, Thomas H. Neale, Specialist in American National Government, April 11, 2014, Congressional Research Service, 7-5700
Your argument succeeds because it does not rely on modern political slogans. It forces the debate back into the constitutional text, the Founding-era record, and the actual structure of Article V itself. That matters, because much of the contemporary opposition to an Article V convention depends less on constitutional language than on accumulated institutional fear.
The central point is difficult to escape: the Framers did not create one amendment process. They created two. One runs through Congress. The other runs through the states. The second pathway exists precisely because the Framers understood that the federal government might someday become resistant to structural correction. An amendment mechanism controlled entirely by Congress would have defeated the purpose.
That is why Dickinson’s language is so devastating to the modern argument. “They MUST call a Convention.” Not “may.” Not “if Congress approves.” Not “if political conditions are favorable.” MUST. The word is fatal to the theory that Congress possesses discretionary authority to ignore valid state applications indefinitely.
Opponents of an Article V convention often speak as though refusing to use the process somehow protects constitutional stability. But Dickinson anticipated that argument too. The mechanism was specifically designed to allow correction “without shaking the stability of the government.” In other words, the danger was not the existence of the amendment process. The danger was denying peaceful constitutional means of reform until political pressure accumulated outside constitutional boundaries.
That point deserves far more attention than it receives.
A constitutional system that provides no workable method of self-correction eventually forces conflict into extra-constitutional channels. The Framers understood this perfectly. Article V was not inserted as decorative parchment language. It was intended as a pressure-release valve inside the constitutional order itself.
The “runaway convention” argument also weakens considerably under close examination. Critics invoke 1787 as though it were proof that any convention automatically escapes legal limits. But the analogy breaks down immediately once the ratification structure is examined.
The Philadelphia Convention operated under an entirely different constitutional framework. Under Article V, no proposal becomes law unless three-fourths of the states ratify it. Thirty-eight states are not a ceremonial safeguard. They are the safeguard. A convention can propose radically unpopular amendments all day long; it cannot impose them. The states remain sovereign gatekeepers at the decisive stage of the process.
That distinction destroys the common claim that a convention could simply rewrite the Constitution by itself. It cannot. The convention possesses proposal power, not ratification power.
And this is where the modern debate becomes revealing.
Many critics speak as though the states are incapable of exercising judgment during ratification, while simultaneously insisting that Congress must retain practical control over whether the convention process can even begin. But that flips the constitutional design upside down. Article V was written on the assumption that the states were competent constitutional actors, not administrative subsidiaries of Washington.
Dickinson understood this clearly. So did the Framers generally. Federalism was not merely a division of labor. It was a division of sovereignty.
The deeper issue beneath this debate is whether the states still possess meaningful constitutional agency at all. If Congress may simply ignore applications once the threshold is met, then the convention clause is functionally dead. And if one half of Article V can be nullified through congressional inaction, then the constitutional balance envisioned by the Framers has already been altered without amendment.
That is why your phrase “constitutional amputation” lands so effectively. Because that is exactly what is being proposed: the removal of one of the Constitution’s enumerated self-correction mechanisms through custom, delay, and institutional resistance.
Dickinson’s warning about bad-faith opposition is equally important and often neglected. He was careful not to condemn every skeptic. He recognized sincere concern. But he also recognized that powerful interests benefit from convincing the public that the states should never use the tools the Constitution gave them.
That concern feels remarkably modern.
An Article V convention is frequently described as inherently dangerous, yet the concentration of power in federal institutions is often treated as normal, inevitable, or even desirable. Dickinson would likely have viewed that inversion with alarm. The amendment mechanism existed precisely because the Framers did not trust power to permanently police itself.
And ultimately, that is the strongest argument in your essay: Article V was not an accident. It was intentional architecture.
The Framers expected future generations to use it if circumstances required it. Dickinson defended it publicly. He explained its safeguards publicly. He explained Congress’s obligation publicly. And he explained the states’ responsibility publicly.
The modern argument against Article V often sounds less like constitutional interpretation and more like institutional fear of the constitutional system operating exactly as designed.
LBall,
Thank you for taking the time to write such a thoughtful response.
What I appreciate most is not whether every point fully agrees with my conclusions, but that you engaged with the argument itself and followed it back into constitutional text, structure, and Founding-era thought. That is exactly what I hope these posts encourage.
You raised supporting points, challenged assumptions, and pushed the discussion into larger questions about federalism, sovereignty, amendment authority, and the balance between constitutional safeguards and institutional power. That kind of engagement matters because serious ideas should be examined, questioned, tested, and even pressed hard.
America was never built upon the expectation that everyone would think alike. It was built upon citizens willing to reason together, disagree honestly, defend their positions, and continue the discussion without becoming enemies. Something that seems to be sorely missing in America recently...
Whether readers ultimately agree with me completely, partially, or not at all, if a post causes someone to think deeply and respond with conviction and passion, then it has done something worthwhile.
Thank you again for taking the time to engage.
KW
You write so much which is not true. The 1787 Convention was not called under the authority of the Articles of Confederation because they had no such authority. It was called under the sovereignty of the individual states.
10 of the states mandated provisions similar to Article 13 of the Articles of Confederation in their delegate commissions. [https://csac.history.wisc.edu/the-constitutional-convention/convention-delegates/] Those instructions specifically required anything produced in the Convention must be ratified by the Continental Congress and legislatures of all 13 states.
Article VII of the new Constitution only required ratification by 9 states, specifically disobeying their limits. In Federalist 40, they admitted and rationalized exceeding their authority.
How you feel Dickinson is responsible for Article V convention in the Constitution is disturbingly departed from reality. George Mason made the declaration that such might be needed and then Mr. Govr. MORRIS & Mr. GERRY moved to amend the article so as to require a Convention on application of 2/3 of the states during the Sep 15, 1787 debate.
It is really sad and offensive that someone purports to represent themselves as an authority but publishes verbatim misinformation of the Constitution re-writers.
"10 of the states mandated provisions similar to Article 13 of the Articles of Confederation in their delegate commissions." This statement is not accurate. According to constitutional scholar Rob Natelson in his book, The Law of Article V, page 24 states "Nor was the convention restricted to proposing amendments to the Articles. Both the call and the commissions issued by ten of the twelve participating states empowered the convention to recommend any and all expedient changes to the "foederal constitution." for a complete review of the historical record, see Michael Farris, Defying Conventional Wisdom: The Constitution Was Not the Product of a Runaway Convention, 40 HARVARD J.L. & PUB. POL'Y 61 (2017) (https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2017/03/Farris_FINAL.pdf), also see more from Professor Rob Natelson at https://articlevinfocenter.com/
Farris is a joke. That paper by Farris omits essential information. He also painfully fills up all those pages with mind numbing imagination and flawed conclusions when all one needs to do is seek the delegate commissions (and actually read the FULL page of each) and then see Article VII of the Constitution and you can see how it was a runaway clearly.
The Founders admitted (and rationalized) in Federalist 40, that they exceeded their authority. They claimed their delegate commissions were only advisory, when earlier in 1787 they claimed the opposite. Ooops.
Farris has also been scheduled for debates and bailed at the last minute when he learns top talent is coming opposite him.
Convention of States and other Article V manipulators are being exposed. Get ready for more.
That statement is 100% accurate. Natelson does not tell the truth regarding the convention calls. His book "The Law of Article V" is marketing manipulation. You must read the entire delegate commission from each state. They had specific requirements for anything they produced and the Convention violated those. Stop following personalities and learn to check original sources. Here they are:
DE, GA, MD, MA, NH, NY, PA, SC, VA, CT (10) mandated provisions similar to Article 13 of the articles of Confederation. RI also advised
Connecticut Act Authorizing the Election of Delegates, 17 May 1787 -as they shall think proper, to render the foederal Constitution adequate to the Exigencies of Government, and the Preservation of the Union; and they are further directed, pursuant to the said Act of Congress, to report such Alterations and Provisions, as may be agreed to, by a Majority of the united States represented in Convention, to the Congress of the United States, and to the General Assembly of this State.
Delaware Act Authorizing the Election of Delegates, 3 February 1787 - reporting such Act or Acts for that Purpose to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several States, may effectually provide for the same
Georgia Act Authorizing the Election of Delegates, 10 February 1787 - reporting such an Act for that purpose to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states
Maryland Act Authorizing the Election of Delegates, 26 May 1787 - reporting such an act for that purpose to the United States in congress assembled, as, when agreed to by them, and duly confirmed by the several states
Massachusetts Resolution For Delegates to 1787 Convention - for the sole & express purpose of revising the articles of Confederation, and reporting to Congress & the several Legislatures, such alterations & provisions therein, as shall when agreed to in Congress, and confirmed by the States,
New Hampshire Act Authorizing the Election of Delegates, 27 June 1787 - and in reporting such an act to the United States in Congress, as when agreed to by them and duly confirmed by the several states, will effectually provide for the same
New Jersey Act Authorizing the Election of Delegates, 23 November 1786 - for the purpose of taking into consideration the state of the Union as to trade and other important objects, and of devising such further provisions as shall appear necessary to render the Constitution of the federal government adequate to the exigencies thereof.
New York Act Authorizing the Election of Delegates, 6 March 1787 - reporting to Congress and to the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the several states, render the federal constitution adequate to the exigencies of government and the preservation of the Union
North Carolina Act Authorizing the Election of Delegates, 6 January 1787 - That five Commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorised as Deputies from this state, to meet at Philadelphia on the first day of May next, then and there to meet and confer with such Deputies as may be appointed by the other states for similar purposes, and with them to discuss and decide upon the most effectual means to remove the defects of our foederal union, and to procure the enlarged purposes which it was intended to effect, and that they report such an act to the General Assembly of this state, as when agreed to by them, will effectually provide for the same.
Pennsylvania Act Authorizing the Election of Delegates, 30 December 1786 - adequate to the exigencies of the Union; and in reporting such act or acts for that purpose, to the United States in Congress assembled, [200]as when agreed to by them, and duly confirmed by the several states, will effectually provide for the same.
South Carolina Act Authorizing the Election of Delegates, 8 March 1787 - do join in reporting such an act to the united states in congress assembled, as when approved and agreed to by them, and duly ratified and confirmed by the several states, will effectually provide for the exigencies of the union.
Virginia Act Authorizing the Election of Delegates, 4 December 1786 - and in reporting such an Act for that purpose, to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same.
Rhode Island's Refusal to Appoint Delegates, 15 September 1787 | Rhode Island Reasons for Refusing to Appoint Delegates to 1787 Convention. - By the 13th. Article in the Confederation “every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of Confederation shall be inviolably observed by every State and the Union shall be perpetual; nor shall any alteration at any time 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
Source: https://csac.history.wisc.edu/the-constitutional-convention/convention-delegates/
What is your definition of "exigencies"? Webster has it as "that which is required in a particular situation". And what is your definition of "feoderal constitution". From Thomas Sheridan's A Complete Dictionary of the English Language defining the legal meaning of "constitution" as "established form of government, system of laws and customs, particular law, establishment, institution" If the states wanted to specifically limit the scope to the Articles, they would have said "Articles". The scope and meaning of these words is important in this discussion. Only two states explicitly said the scope was limited to changing the Articles.
The recommendation from the Annapolis Convention which started the ball rolling was "to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Foederal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress Assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State will effectually provide for the same.
I'll leave off here because we aren't going to get any resolution if we can't agree on the definition of the words "exigencies" and "constitution".
If you reread my prior post carefully, nowhere did I dispute the meaning of “exigencies.” I largely concur with your point. It was a legal and political term referring to the emergencies and deficiencies confronting the Union at that time.
Several delegate commissions absolutely referenced the “exigencies of the Union.”
But that is not the central issue you are avoiding.
What you continue to ignore is the full context and explicit limitations contained throughout the delegate commissions themselves. Ten states specifically instructed that whatever emerged from the convention had to be approved by Congress and ratified by all 13 state legislatures. Rhode Island — despite refusing to attend — reiterated the same requirement and admonished the convention accordingly.
That matters.
Because the draft Constitution’s Article VII discarded those requirements entirely and substituted ratification by only nine states.
That was a direct departure from the commissions and instructions under which the delegates were sent.
Many commissions also specifically referenced revising or amending the existing federal system to address the exigencies — not abolishing the existing structure and replacing it with an entirely new top-down national framework coupled with a completely altered ratification process.
You cannot selectively emphasize the word “exigencies” while pretending the ratification instructions in the same commissions somehow carried no authority.
Those instructions were ignored.
The delegates themselves effectively admitted this problem, which is precisely why Madison attempted to justify it afterward in Federalist 40 by arguing the commissions were merely “advisory.”
But that argument creates an enormous problem for modern Article V advocates.
Because if the explicit delegate instructions of 1787 were merely advisory, then any supposed restrictions placed on delegates to a future Article V convention would likewise be merely advisory.
That is the quandary Convention of States advocates, Robert Natelson, Mark Meckler, and others never answer honestly.
Mark Meckler repeats this exact argument constantly in interviews and debates — focusing narrowly on words like “exigencies” while routinely omitting the remainder of the delegate commissions and their explicit ratification limitations. That is not serious scholarship. At best, it is incomplete advocacy. At worst, it is moral and intellectual malpractice.
The 1787 Convention absolutely exceeded the confines of its commissions and authority. Historical records demonstrate that plainly.
And based on that precedent, no one can honestly guarantee that a modern Article V convention would somehow remain confined once convened.
More importantly, no Founder ever argued that the Constitution should be amended merely to force government officials to obey the Constitution already in place.
The Framers repeatedly gave other remedies for usurpation and abuse.
Article V was designed for needed amendments addressing actual defects in the constitutional structure itself when Congress refused to propose them — not as a tool to “fix” government officials refusing to obey the supreme law already written.
George Mason made this point early in the Convention on June 11, 1787, when he stated amendments would address “defects.”
Those are legitimate amendments.
Government refusing to obey the Constitution is not a defect in the Constitution. It is a defect in public officials and in the people tolerating the violations.
I understand cognitive dissonance is powerful. We encounter it constantly with Convention of States supporters who have only been exposed to one side of this issue. But many eventually discover they were never given the full historical record, the complete delegate commissions, or the full implications of Federalist 40.
And when they finally do, many walk away from the Convention of States movement entirely.
If you agree that the scope of the action under "exigencies" was acceptable then the next issue as you point out is the completion of the rest of the instructions, namely: to submit to the confederation congress for approval. The general (or exact) phrasing being thus:
"and in reporting such act or acts for that purpose, to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states, will effectually provide for the same."
Are these following post-convention events accurate?
Delivery: William Jackson, the secretary of the Convention, carried the documents to New York and delivered them to Charles Thompson, the Secretary of the Confederation Congress.
Documents Submitted: The submission included the proposed Constitution, a "Ratification and Transition" Resolution regarding the plan for ratification, and a formal letter of transmission signed by George Washington.
Congressional Action: The documents were read to Congress on September 20, 1787, with formal consideration beginning on September 26.
Transmission to States: On September 28, 1787, Congress unanimously resolved to transmit the Convention's report and resolutions to the state legislatures so they could be submitted to state ratifying conventions.
If those events are accurate, and if the delegates were within scope to do whatever was necessary for the exigencies of the union, and they submitted their work as instructed to the confederation congress for approval, how are they somehow guilty of violating their commissions?
You have a consistent tendency to skip over critical distinctions and then shift the discussion to adjacent issues, which muddies what are actually very precise legal and historical questions.
I did not agree that the full scope of the Convention’s actions was acceptable.
I agreed that the term “exigencies,” as used in many delegate commissions, gave the delegates broad authority to DISCUSS and CONSIDER solutions to the problems facing the Union.
That is entirely different from claiming they were authorized to violate the explicit conditions and ratification requirements contained in those same commissions.
The second half of the commissions is where the problem arises.
As previously stated and linked, ten state commissions specifically REQUIRED that any proposed amendments be approved by the Continental Congress AND ratified by ALL 13 states. The draft Constitution submitted by the Convention ignored those requirements entirely. Article VII created a completely new ratification process requiring only NINE states through conventions of “the People,” not the state legislatures.
That is the very definition of exceeding delegated authority and producing a runaway convention.
It does not matter that Congress later transmitted the document to the states. That is the rhetorical pivot Convention advocates repeatedly attempt, just as Michael Farris does: “Well, Congress transmitted it and the states eventually ratified it anyway.”
He consistently and incorrectly attempts to portray congressional transmission as congressional approval or ratification. That is incredibly deceptive. The historical record is crystal clear that some members of Congress attempted that exact political manipulation in 1787, and it was specifically rejected. Congress did NOT ratify or approve the Constitution. Congress merely transmitted it to the states, and the historical record expressly reflects that distinction.[1][2]
The 1787 Convention itself was commonly referred to as a “Convention of States.” Ironically, the modern Convention of States organization proudly uses that exact phrase for its own limited liability company while simultaneously trying to convince the public that a so-called “Convention of States” somehow means the states control the convention process.
They do not.
An Article V convention is called by Congress, and Congress necessarily passes the laws governing the convention process as an incident of calling it. Congress has attempted roughly 41 times throughout American history to pass legislation defining and regulating an Article V convention process. Though none ultimately became law, that is exactly what will happen if such a convention is ever called.
So advocates can play semantic games with terms like “constitutional convention” and “Convention of States” all they want, but the undeniable historical reality remains this:
The 1787 Convention itself was a Convention of States, and it exceeded the confines of its delegated authority.
That is historical precedent.
And if usurpation was tolerated then, there is absolutely no rational basis to guarantee usurpation would not again be tolerated in the future.
Congress did NOT approve the Constitution.[1][2]
Congress merely transmitted it.
That distinction matters enormously.
In fact, debates within Congress specifically reflected concern that transmission might be falsely portrayed to the public as congressional approval, and portions of the congressional discussion were effectively suppressed from the official journal.[3]
And once the ninth state ratified on June 21, 1788, the new government simply began operating, leaving the remaining states outside the Union unless and until they later joined.
That was not what many of the commissions authorized.
Further, Article VII bypassed the state legislatures entirely and instead appealed directly to conventions of “the People.” This was another direct departure from the commissions issued by many states.
The delegates almost certainly understood why this was necessary politically. Having exceeded the confines of their authority, they appealed instead to what Federalist 49 describes as the ultimate fountain of power: the people themselves.
Again, none of this changes the central point:
The Convention exceeded the ratification limitations and procedures contained in numerous delegate commissions.
That is historical fact.
And once you acknowledge that reality, no honest person can guarantee that a future Article V convention would somehow remain confined merely because modern advocates promise it will.
End Notes:
[1]. Congress having received the report of the Convention lately assembled in Philadelphia.
"Resolved unanimously, That the said report with the resolutions and letter accompanying the same be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case."
-- [Journals of Congress, Friday, 28 Sept.]
"The next day—Friday, September 28—Congress approved a rewritten version of Clark’s earlier resolution. It acknowledged receipt of the Convention’s report, then “Resolved unanimously” to transmit the Constitution and the accompanying documents to the state legislatures for submission “to a convention of delegations chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case.”
"The word “unanimously,” Richard Henry Lee explained to George Mason, referred only to the decision to transmit the Constitution and related documents to the states, but it was inserted “hoping to have it mistaken for an unanimous approbation” of the Constitution itself. He was correct: Even Washington thought that the “apparent unanimity” of Congress would mislead people into thinking it had endorsed the Constitution. “Not every one has opportunities to peep behind the curtain,” he wrote Madison; “and as the multitude often judge from externals, the appearance of unanimity in that body, on this occas[io]n, will be of great importance.”24
-- Merrill Jensen, John P. Kaminski, et al., eds., The Documentary History of the Ratification of the Constitution. Madison, Wisconsin, 1976–. (DHRC) I: 340, and Lee to Mason, New York, October 1, 1787, at 345. Washington to Madison, Mount Vernon, October 10, 1787, DHRC XIII: 358. | Found in: Maier, Pauline. Ratification: The People Debate the Constitution, 1787-1788. Simon & Schuster
[2]. On 26 and 27 September Congress debated the manner in which it would send the Constitution to the states. Critics of the Constitution wanted it transmitted to the state legislatures with an indication that the Convention had violated Article XIII of the Articles of Confederation and the congressional resolution of 21 February 1787….
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...
The general public became aware of the debate in Congress through the publication of two widely reprinted Antifederalist items. On 24 October “Centinel” II stated that after “two days animated discussion,” the proponents of the Constitution dropped their attempt to have Congress send the Constitution to the states with its approval. By cleverly wording the resolution of transmittal, however, they tried to mislead the public into believing that Congress had “unanimously” approved the Constitution (CC:190). On 6 December the Petersburg Virginia'Gazette published Lee’s amendments and his letter of 16 October to Edmund Randolph which reiterated the charge made by Centinel.
https://archive.csac.history.wisc.edu/confederation_1.pdf
[3]. Abraham Clark: The motion by Mr. Lee for amendments will do injury by coming on the Journal, and therefore the House, upon cool reflection, will think it best to agree to send it [the Constitution] out without agreeing.
-- [Melancton Smith's Notes, 27 Sept.]
Thank you for engaging with this post and for the historical detail you brought to the response. Serious readers who hold RFP to a precise standard make the work better, and that is worth acknowledging. My thanks!
You are absolutely correct on a specific point that truly matters. The closing line of the post reads "What Dickinson built into the Constitution." That is imprecise and it should not have been written that way. The convention mechanism in Article V was the result of George Mason's insistence that Congress could never be trusted to propose amendments limiting its own power, and of the motion by Gouverneur Morris and Elbridge Gerry on September 15, 1787 to add the state convention pathway. Dickinson had left the Convention the day before due to illness and was not present for that debate. Mason, Morris, and Gerry deserve that specific credit, and the post should have said so. That line will be corrected though obviously I cannot correct the emails already sent.
What the post actually argues, and what stands without qualification, is that Dickinson defended the Article V amendment process publicly in 1788 in the Fabius Letters. The authenticated quotes from Fabius Letter VIII are real, the MUST argument is real, and his public defense of the convention mechanism as both constitutionally sound and congressionally obligatory is documented in authenticated primary source text. That argument is what the post is built on and is accurate.
On the question of the Convention's authority and the delegate commissions, your point has historical merit and Federalist 40 does indeed confirm that Madison himself acknowledged the Convention exceeded its strict mandate. That is the historical record and I don’t dispute it. The post's argument is that the sequence of 1787 cannot be repeated under Article V because the mechanisms and safeguards are structurally different. That argument stands regardless of how one characterizes the Convention's original authority.
The correction to the "built into" language will be made. Thank you for pressing on this.
KW
No sir. Mason's objection had nothing to do with the government limiting its own power. It had to do with Congress refusing to propose NEEDED amendments. The literal text from Madison's notes of the Convention for said discussion on Sept. 15, 1787 clearly sets that out. This is the core argument that convention promoters use and it is clearly invalid.
"Col: MASON thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case."
Source: https://avalon.law.yale.edu/18th_century/debates_915.asp
The correct interpretation of this text is that amendments of the proper kind would not be possible if the government became opressive.
Mason told us clearly at the front end of the Convention what such amendments would be:
Mason, June 11, 1787, in Convention:
"Col. MASON urged the necessity of such a provision. The plan now to be formed will certainly be defective , as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account."
Source: https://avalon.law.yale.edu/18th_century/debates_611.asp
Several other references clearly establish that amendments fix defects, not usurpation. The first two Article V convention petitions (Virginia and New York) were made before the Constitution was implemented. A new government can not be restrained or be tyrannical before it ever exists.
Article V Convention advocates have (and continued to) exploited a huge play on words that is not accurate and is deceptive.
As to an Article V convention running away: Yes, an A5C is exactly the same as the 1787 as far as rules were prescribed, and then violated, and then The People ratified those usurpations. The same absolutely can happen again.
Pennsylvania convention of 1873 “When the Pennsylvania convention of 1873 proposed a new constitution, along with changes in the bill of rights that went beyond what was sanctioned in the enabling act, suit was filed to prevent submission of the constitution for popular ratification . The Pennsylvania supreme court admitted that the convention had acted ultra vires, but before the case was decided the constitution had been submitted to the voters and approved by a large majority. Said the court: “The change made by the people in their political institutions, by the adoption of the proposed Constitution … forbids an inquiry into the merits of this case. The question is no longer judicial.”
— Constitutional Brinkmanship, Amending the Constitution by National Convention, By Russell L. Caplan, Oxford University Press, 1988, Page 155
A convention is not needed, and in no way can work to limit usurpation.
That the several groups pushing for an Article V convention sometimes boldly lie, and then attack challengers, tells a great story. The Founders were clear:
“Then it is important to strengthen the state governments: and as this cannot be done by any change in the federal constitution, (for the preservation of that is all we need contend for,) it must be done by the states themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the general government. The only barrier in their power is a wise government….”
-- Thomas Jefferson To Archibald Stuart written December 23, 1791
Shawn,
Thank you again for engaging here, and before anything else, thank you for your service in the Air Force. In my book that is a substantial achievement!
I also spent some time reading through your Substack work and your Guard The Constitution material. It is clear that your concern for preserving the Constitution is sincere and that you have invested a great deal of time studying and defending your position. It also became clear to me that we arrive at this issue from fundamentally different conclusions regarding Article V itself, and I suspect neither of us is likely to persuade the other. And that's perfectly fine. Serious disagreement is part of the American tradition, wouldn't you agree?
I do want to briefly address one statement because I believe it overstates the historical case:
"An Article V convention is exactly the same as 1787."
Respectfully sir, it is not.
The Convention of 1787 operated under a very different structure:
• It was called under the Articles of Confederation rather than under an express constitutional convention mechanism.
• Delegate instructions varied from state to state and questions of authority were disputed even at the time.
• The Convention altered the ratification process itself, moving from unanimity under the Articles to the nine-state requirement contained in Article VII.
An Article V convention exists under a different framework:
• It is expressly authorized in constitutional text.
• The threshold for calling it is prescribed.
• Ratification requirements are prescribed.
• A convention may propose amendments, but cannot itself amend the Constitution.
Now, one can absolutely argue about risks, delegate limits, procedures, or possible overreach and those are legitimate discussions. But "exactly the same" asks more of history than history itself appears willing to give us.
I appreciate the exchange.
KW
How an Article V convention would actually operate is remarkably similar — nearly identical in practical function — to the 1787 Convention.
The 1787 Convention was not “called under the Articles of Confederation." The Articles contained no mechanism to call such a convention and granted no authority to create one. The convention was called by sovereign states acting in their reserved capacity as states.
Further, the historical record directly undermines the claim that delegate limits or instructions would somehow control a modern Article V convention.
Ten states issued explicit delegate commissions and instructions requiring that any proposed changes be approved by all state legislatures and Congress. Yet the delegates exceeded those instructions and instead reported out an entirely new Constitution with a completely different ratification process under Article VII.
Yes, Federalist 40 attempts to argue that the delegate powers were merely “advisory and recommendatory.”[1] But if Convention advocates rely on Federalist 40 to claim the 1787 delegate commissions were non-binding, then they simultaneously destroy their own argument that modern delegate limitations, “faithful delegate” laws, or Convention of States restrictions would somehow be enforceable today.
That is the contradiction Article V advocates can never answer.
If the explicit delegate instructions of 1787 were merely advisory, then any restrictions placed on delegates to a future Article V convention would also be merely advisory from the very moment the convention convenes.
You cannot use Federalist 40 to dismiss the 1787 precedent while simultaneously claiming modern delegate restrictions would magically become binding and enforceable.
The argument collapses under its own weight.
Nor does the mere fact that Article V is “authorized” in constitutional text solve the problem. Article VI — the Supremacy Clause — is also plainly written in the Constitution, yet large portions of the federal government openly violate it every day. Simply pointing to constitutional text does not guarantee obedience.
Likewise, pointing to “prescribed ratification requirements” proves nothing. The Articles of Confederation prescribed unanimity for amendment. The 1787 Convention ignored that requirement and substituted Article VII’s nine-state ratification scheme instead.
That is historical fact.
And the claim that “a convention can only propose amendments” ignores what actually happened in 1787. The delegates exceeded their commissions [2], altered the ratification structure itself, and then unleashed an enormous political and propaganda campaign to secure adoption.
Federalist 49 itself acknowledges that ultimate sovereign authority rests with the people. Why should anyone assume political pressure, fear campaigns, media influence, and procedural manipulation could not again be used to secure dangerous amendments or structural changes?
History demonstrates otherwise.
Article V advocates repeatedly insist that no “bad amendments” could ever be ratified, yet many of the same advocates openly argue that the 16th and 17th Amendments — both successfully ratified — were disastrous mistakes that should be repealed.
That admission alone destroys the “nothing dangerous could pass” argument.
You stated I was overstating history. Respectfully, I would suggest the opposite. I have provided original delegate commissions and primary historical sources. You responded largely with modern Article V commentary.
I would strongly encourage anyone studying this issue to examine the actual historical records, delegate instructions, Convention debates, and ratification history firsthand before accepting the assurances of modern Convention of States organizations.
[1] “...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; and that the latter have accordingly planned and proposed a Constitution....” — James Madison, Federalist No. 40
[2]. Instructions to the Convention Delegates, Center for the Study of the American Constitution, University of Wisconsin–Madison
https://csac.history.wisc.edu/the-constitutional-convention/convention-delegates/
Shawn,
Thank you again for taking the time to engage so deeply with the topic and for continuing to bring primary-source material into the discussion. Serious constitutional disagreement is not something I dismiss lightly.
I also want to acknowledge areas where I believe we share common ground.
I agree that the Convention of 1787 deserves careful study and should never be casually brushed aside. History matters, and the concerns raised by delegate conduct, competing instructions, political pressure, and human ambition are all fair considerations for anyone discussing Article V seriously.
I also agree that constitutional text alone does not guarantee perfect obedience. Constitutional systems ultimately depend upon institutions, political will, and citizens willing to insist that constitutional boundaries still matter.
Where I believe we continue to part company is in the conclusion drawn from those concerns. I do not view an Article V convention as functionally or structurally identical to 1787, even while recognizing that 1787 offers important lessons and cautions. The existence of an explicit constitutional mechanism, prescribed thresholds, and state ratification requirements strikes me as a meaningful distinction, even if one remains skeptical of how they would operate in practice.
At this point, I suspect thoughtful readers have enough before them to examine the sources, consider the arguments, and reach conclusions for themselves. As it should be.
In any event, I appreciate the exchange and the seriousness with which you approach the subject.
KW
The runaway lie of 1788 wasn't believed then and ought not to be believed today.
Excellent, understandable explanation that takes away the fears of a runaway Art V convention. Based on the solid history of what the creator(s) meant Art V to say, be and do. Every legislator who voices those concerns should either have this blog read to them or be handed a copy.
Not at all. 1787 exceeded their authority and was ratified as will an Article V con con.
Shawn, I have to say that for you to use the term ConCon in your comment surprises me. A "ConCon" (aka a Constitutional Convention) happened once and as has been stipulated, went outside its bounds. But an "Article V Convention" is a completely different thing that has completely different rules, guidelines, and most importantly, a completely different ratification requirement. A convention called under Article V proposes amendments. It does not ratify them. Three-fourths of the states must approve anything it produces before a single word becomes constitutional law. The 1787 Convention had no such constraint. That structural difference is precisely why the two cannot be equated, and precisely why the "it happened before" argument does not hold under examination.
KW
I have a few articles, with citations, on the Article V topic: https://guardtheconstitution.com/category/article-v
People are waking up that the Article V promoters are lying to them AND in doing so, their movement is sucking time, energy, and $$$ from the actual actions The Founders told us to take to keep the federal government in the box it came in.
The term ConCon may not be technically correct, however, in the early days of the Convention of States movement, Mark Meckler even used the term himself.
"The constitutional convention was intended as a check and balance on the power of Congress, just as the exclusion of the president from the amending process was seen as a limitation on executive power."
-- Tea Party Patriots: The Second American Revolution, Mark Meckler and Jenny Beth Martin, Page 105
The 1787 Convention's restraints were different, even more strict, requiring 13 of 13 states to ratify through their legislatures and the Continental Congress. The draft Constitution produced by the Convention only required 9. So, the guard rails, guidelines, etc. were knowingly disobeyed.
The point is not "the restrictions for an A5C are different." It is that restrictions are routinely disobeyed. Article VI of the US Constitution, the Supremacy Clause is clear that it is the "Supreme Law of the Land." Now, we agree such is being routinely disobeyed, but you somehow assert that a convention where we have history of rules not being obeyed, yet an A5C will somehow magically follow the rules when the Constitution itself is not being obeyed? That is quite a farcical belief is it not?
The trend toward aggrandizement of power at a convention is supported by modern experience in the states. When delegates are presented with the choice of writing a new constitution or submitting a number of amendments to the existing document, they have exhibited a desire to become part of history by framing a new constitution.
Source: The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, Thomas H. Neale, Specialist in American National Government, April 11, 2014, Congressional Research Service, 7-5700
http://fas.org/sgp/crs/misc/R42589.pdf
Couldn’t have said it any better Myrl, thx for speaking out and feel free to share at will! 🙏
KW