Myth Busting: Answers to the Most Common Myths About Article V

Myth

Any convention held today will almost certainly be a runaway convention because even the Constitutional Convention in Philadelphia was a runaway convention.  And those men were of the highest moral character.  If they couldn’t keep their convention on track, what hope do we have?

Reality

The Philadelphia convention was not a runaway convention.  The delegates obeyed their instructions as evidenced by the fact that no state took any action of disapprobation towards its delegates.

Objection Your Honor!  Asked and Answered 

The charges levied against that convention are as old as the Constitution itself. There’s nothing new under the sun.

Madison devotes the entirety of Federalist 40 to justify the actions of the convention and explain how the delegates stayed within the confines of their commissions.

Objection #1: The delegates were not authorized to propose a national structure for the union.  They were restricted to revising and amending a federal structure only.

This is the first point Madison addresses.  He says they were authorized to propose a mixed structure, partly federal, partly national, and that this authorization could be determined “by an inspection of the commissions given to the members” of the convention.  And since these commissions all referred back to either the Annapolis convention or the Congressional resolution, “it would be sufficient to recur to these particular acts.”

The Annapolis convention recommended the states…

devise such further provisions as shall appear to them necessary to render the constitution of the Fœderal Government adequate to the exigencies of the Union.

The Congressional opinion was for the convention to establish “in these states a firm national government.”

So the convention was authorized

to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes.

Objection #2: The convention didn’t revise and amend the Articles of Confederation; it proposed a whole new constitution.

Madison addresses this claim also.  He wonders aloud if 

no ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could possibly mould them into a national and adequate government; into such a government as has been proposed by the convention?

Changing the title—no biggie

Madison says that simply changing the title of the document from the Articles of Confederation to The Constitution of the United States “could never be deemed an exercise of ungranted power.”

Next, as to the extent of the changes recommended by the convention, Madison notes that 

ALTERATIONS in the body of the instrument are expressly authorized. NEW PROVISIONS therein are also expressly authorized.

Therefore the convention had the “power to change the title; to insert new articles; to alter old ones.”  Given this power, Madison says that “so long as a part of the old articles remain,” those who claim the convention usurped authority

ought at least to mark the boundary between authorized and usurped innovations; between that degree of change which lies within the compass of ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a TRANSMUTATION of the government

There was no limit on the “revise and amend” charge.

(Spoiler alert: That means proposing a new mode of ratification was within the authority of the convention.)

Dramatic changes were expected by all.

Madison notes that 

The States would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some SUBSTANTIAL reform had not been in contemplation.

Do whatever it takes

Today, we would paraphrase the charge to that convention as: Do whatever it takes to keep the union together.

But they changed the rules!

Convention opponents today like to point out how the Constitutional Convention changed the mode of ratification.  That the founders essentially cheated the process because they knew they would never get unanimous buy-in from all the states.

Myth

The founders in Philadelphia changed the rules.  They knew they could never get 13 states to agree to the new Constitution, so they cheated the process and said that the Constitution would go into effect as soon as 9 states had ratified.

Fact

The Philadelphia convention merely proposed a new ratification process.  The convention had no real and final powers to establish the Constitution.

It would be for the states and Congress to agree or not with the convention’s proposals.

Congress agreed

The convention transmitted two documents to Congress – the proposed Constitution and the Resolutions of Transmittal.  The Resolutions of Transmittal contained the new ratification instructions.  Congress was given no role in the new process.  They were asked to simply transmit both documents to the 13 state legislatures.

Congress could have refused to transmit the documents which would have amounted to a rejection of the new ratification process.  Or Congress could have transmitted them to the states, signaling approval.  Congress ended up sending both documents to the states.

Congress approved of the new ratification process.

The States also agreed

The legislatures of each state also received the proposed Constitution and the Resolutions of Transmittal containing the recommendation that the each legislature establish ratifying conventions in its state.  As with Congress, any state could have rejected the new ratification process by refusing to create a ratifying convention.  And if any state had refused, the old ratification process requiring unanimity would still be in effect.

But every legislature (even Rhode Island) voted to create ratifying conventions in its state, signaling unanimous approval of the new ratification process.

Ratification process appropriately changed

With the new ratification process now having the unanimous approval of the states and of Congress, the Constitution could now be ratified according the new process: ratification by 9 state conventions.

The Resolutions of Transmittal

source:  https://avalon.law.yale.edu/18th_century/ressub01.asp

Rhode Island Ratifying Convention

Even Rhode Island’s legislature agreed to create a ratifying convention for its state.

They didn’t initially approve of the Constitution but they did approve of the new ratification process.

source:  https://www.loc.gov/resource/bdsdcc.c0901/?st=gallery

Myth

There are no rules for holding a convention like this.  It will be complete chaos.

Fact

The “no rules” argument is meant to scare you.

All delegates will have some familiarity of Roberts Rules of Order and Mason’s Manual.  And most delegates would be legislators and attorneys well-versed in both.  To think that a group of legislators and attorneys wouldn’t know how to conduct a convention is absurd.

Everyone there would know you need to elect a convention chairmain for example.  Everyone would understand the concept of making motions, calling the question, etc.

Even convention opponents admit that the convention will set its own rules.  So saying that there will be no rules just isn’t honest.

Ground Rules

There are a couple ground rules for an Article V convention that we already know about

Voting will be by state (likely one state/one vote)

And the state legislatures control the process from beginning to end

Myth

An Article V convention is a Constitutional Convention.  Everything would be up for grabs just like at the first one.  We could lose our Bill of Rights.  We could even get a whole new Constitution!

Fact

An Article V convention has to have a defined agenda.  They are not wide-open, anything goes events.

Left and Right agree on this.

The left and right may not agree on much these days, but one thing all legislators agree on is that a convention has to have a defined agenda.

But it’s a Constitutional Convention !

The phrase Constitutional Convention and the implication that everything is up for grabs was originally part of a disinformation campaign launched by liberals in the late 50’s/early 60’s.  

A brief history of the phrase “constitutional convention”
1901 – a congressional compiler gives the erroneous title “consitutional convention” to a state legislative resolution
1903 and later – some states actually use that term in their resolutions
1911 – Sen Weldon Heyburn R-Id, who passionately opposed the direct election of senators, first floated out the idea that…

“when the constitutional convention meets, it is the people, and it is the same people who made the original constitution, and no limit on the original constitution controls the people when they meet again to consider the Constitution”

Now this view is not legally sound.  First of all, the language of Article V is clear.  There is only one thing the convention can do:  It can propose amendments.  It’s a glorified drafting committee.

Can’t Replace This Constitution with Another

Article V restricts amendments to this Constitution…

amendments … shall be valid … as part of this Constitution…

This view also flies in the face of comments made by the founders themselves.  Consider these remarks from Roger Sherman Aug 13, 1789:

“All that is granted us by the 5th article is that, whenever we shall think it necessary, we may propose amendments to the Constitution; not that we may propose to repeal the old and substitute a new one.”

Source: Roger Sherman Aug 13, 1789
https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=372

Myth

An Article V convention can do whatever it wants because it  **is**  a Constitutional Convention.  Black’s Law Dictionary says so.

Fact

Black’s Law Dictionary does indeed say that an Article V convention is a constitutional convention.  But contrary to what you might think, legal dictionaries and encylopedias are not definitive legal sources and no competent attorney treats them as such.

..law dictionaries are kind of a place to start only when you research, not to finish, …that law dictionary definitions are often not authoritative in fact…

source: beginning at 33:08

The library of Georgetown Law Center even had this posted on their website at one time:

There are two primary uses for legal encyclopedias.

First, the articles can be quite useful as a general introduction to an area of law which is new to you. They provide more in-depth information than a legal dictionary, while being nearly as accessible and easy to use.

Second, encyclopedias are a way to find citations to cases and other useful materials on a particular issue. These two uses make the encyclopedias a very good place to begin major research, whether for an academic paper or a legal memorandum. However, the legal encyclopedias are not intended to be used as authoritative sources on the law in any area, and thus are not cited in briefs, memoranda, or scholarly papers.

source:
https://articlevinfocenter.com/when-they-start-throwing-blacks-law-dictionary-at-you-duck/

Myth

An Article V convention cannot be controlled

Fact

An Article V convention is a state-led process.  State legislatures control the process from beginning to end.

How do we know?

We know from comments made during the ratification debates.  And we know from the historical record of other interstate conventions held before and after the Philadelphia convention.

From the ratification debates in PA

“…the proposed Federal Constitution cannot be very dangerous while the legislature[s] of the different states possess the power of calling a convention, appointing the delegates and instructing them in the articles they wish altered or abolished.” 

source:  https://digicoll.library.wisc.edu/cgi-bin/History/History-idx?type=turn&id=History.DHRCv2&entity=History.DHRCv2.p0720 

From the historical record

Numerous interstate conventions had been held in the America before the Philadelphia convention.  The founding generation was intimately familiar with them.

A list of several of these can be found here.

In every instance, state legislatures controlled their delegations.  States voted as states.  And the conventions stayed on topic.

Control by 34

It must be remembered that an Article V convention doesn’t even happen until 34 states agree on why they’re meeting. That’s a ⅔ supermajority of states dedicated to keeping the convention on track.  Even if we throw away the other 16 states as hostile to the agenda, that won’t matter because states vote by state.  Each state gets one vote.  And there’s no scenario in which 16 beats 34.  The 16 states would have to convince 10 other states to abandon the scope limitations in order to even formally propose an off-topic amendment.  And those 16 states would have to convince a total of 22 other states to get any of those amendments ratified.

Source:  

Myth

Congress will control the convention process.  Congress will select the delegates and set the rules for the convention including how votes will be cast.  The source of this authority is the Necessary and Proper clause in Article I and in the power to “call” the convention is Article V.

Fact

Congress has the authority to “call” the convention.  That power is limited to setting the time, place and purpose (Sec 3.9.2).  The power to call the convention does not extend to anything else (like saying who can go and how voting works).  Congress is not authorized by the Necessary and Proper clause to control any aspect of the convention.

How do we know?  

We know from common sense.  We know from the ratification debates.  We know from case law.  And we even have Congress itself rejecting, on multiple occassions, the notion that it can control this process

Just using common sense, we know that the founders didn’t authorize Congress to control the convention.  Remember why the convention was put into Article V in the first place :  To give the people a way of amending their Constitution should Congress fail to act.

George Mason, during the Constitutional Convention, even observed that…

…no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive…

unless the states had the authority to propose and ratify amendments without the need of Congress.

source:  https://avalon.law.yale.edu/18th_century/debates_915.asp

And these people who wrote Article V also wrote Article I.  So you would have to assume a fair amount of stupidity on the part of the founders to think that they would grant to Congress in Article I the power to interfere in a process designed to circumvent them in Article V.

From the ratification debates…

We also know from comments made during the ratification debates that it’s the states who control the process from beginnging to end, not Congress.

From the debates in PA…

“That the proposed Federal Constitution cannot be very dangerous while the legislature[s] of the different states possess the power of calling a convention, appointing the delegates and instructing them in the articles they wish altered or abolished.” 

source:  https://digicoll.library.wisc.edu/cgi-bin/History/History-idx?type=turn&id=History.DHRCv2&entity=History.DHRCv2.p0720 

From case law (Idaho v Freeman, Dyer v Blair) 

The fight over the ERA in the 70’s and 80’s produced judicial opinions that undercut any claims Congress may make to exert additional control over the process.

In the Dyer case, the courts held that when a legislature or convention exercises a federal function, statutory law on the subject is advisory only.  (For an explanation of what a “federal function” is, see Section I. Federal Functions)

And in the Idaho v Freeman case, here’s what the courts said about Congress’s authority in the amendment process…

First, it must be recognized that Congress’ power to participate in the amendment process stems solely from article V…  

Congress, outside of the authority granted by article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by article I

source: https://www.leagle.com/decision/19811636529fsupp110711473

Myth

Amendments don’t work.  The federal government doesn’t follow the Constitution now.  Why would they follow an amended Constitution?

Fact

Amendments do work.  Presidents don’t seek 3rd terms because of the 22nd amendment.  Women can vote because of the 19th.  We abolished slavery with the 13th and made freed slaves citizens with voting rights using the 14th and 15th.  And ask yourself if you would be just well off with the 2nd amendment as without it.

Not an argument against a Convention

It should be noted that this argument isn’t in opposition to a convention, but rather to any amendments proposed either way.  This is an argument against the entirety of Article V.

It’s a self-contradictory argument that says everything is pointless but we must preserve the status quo.

Which Constitution are we talking about?

The average person on the street is completely unaware that the federal government actually does follow the Constitution.

They’re just following the wrong one.

They’re following the Constitution as interpreted by the Supreme Court.  You and I follow the Constitution as written by the founders.

source:  

Myth

George Soros will take over the convention

Fact

This is just another version of the runaway convention scare tactic.

Soros himself doesn’t even believe he can take over a COS convention.  That’s why he opposes us at every opportunity through organizations like Common Cause.  If he thought he could hijack a COS convention, he wouldn’t be opposing it.

Other Article V efforts

But the left does try to advance their own amendments through the state-led route (WolfPAC, Move To Amend)

Why would the left mount multiple Article V campaigns, not only separate and distinct from the Convention of States effort, but separate and distinct from themselves?  

Simple.  

They know a convention has to be scoped.  And they won’t control the agenda at a COS convention.

That right there tells you the convention can be limited and it tells you all the players in this domain KNOW it can be limited.  If the left thought they could take over a COS convention, they wouldn’t be opposing it.

Myth

Congress will decide how votes are cast and counted.  It will probably look like the Electoral College.

Fact

Neither Congress’s power to “call” the convention, nor its Necessary & Proper powers can be used to prescribe how votes will be counted.  All states will be given equal voting strength because a convention of states is a meeting of equal sovereigns.

Call does not mean control

A review of founding era convention calls reveals that the power to call a convention is limited to specifying the time, place and purpose for the convention (source).  

Founding-Era calls did not try to control the composition, rules, or conduct of the convention beyond designating time, place, and purpose (source).

Congress may not use its Necessary & Proper powers to control the convention.

The Necessary & Proper clause of the Constitution only applies to the powers enumerated in Article I, Section 8 (source).  With respect to the amendment process, statutory law is advisory only (Dyer v Blair)

In another case (Idaho v Freeman), the courts held that 

Congress’ power to participate in the amendment process stems solely from article V…  

Congress, outside of the authority granted by article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by article I

source: https://www.leagle.com/decision/19811636529fsupp110711473

Why equal voting?

Because a convention of states is a meeting of equal sovereigns.  States at a convention would each have the same voting strength similar to the way member countries in NATO or the UN have equal voting strength.

It’s always been that way

Every interstate convention that’s ever been held in America was one state/one vote.  The only exception being a convention in the late 1800’s where each state got 8 votes.  But even in that case, no state had a greater voting strength than any other state.

Practical reasons

There are also practical reasons why states would all have the same voting strength.  The notion of giving some states greater voting strength than others was actually considered in the 1780’s.  For an more in-depth explanation of why that failed, read this article.


The Founders’ intent

We also know what the founders intended from the ratification debates : one state, one vote and majority rules at a convention.  From the debates in Massachusetts, we read…

…seven States, assembled in Convention, as proposed, agree to any amendments…

source: https://digicoll.library.wisc.edu/cgi-bin/History/History-idx?type=turn&id=History.DHRCv5&entity=History.DHRCv5.p0411

Myth

The amendment process was only intended to fix defects in the Constitution.  It was never meant to be a tool to control a federal government that had usurped its authority.

Fact

The founders did not intend for amendments just to fix defects.  The founders also contemplated clarifying amendments.  

Exhibit A – the 11th Amendment

One of the most powerful rebuttals to this argument is the 11th amendment.  It didn’t grant, revoke or in any other way limit the power of the federal or state governments.  The 11th amendment is what’s called a clarifying amendment.  The nation so strongly disagreed with the Supreme Court opinion in Chisholm v Georgia, that we proposed and ratified the 11th amendment in less than 1 year.

Amendments to counter federal usurpations

The founders also understood the amendment process to be a force that the states could use to push back against an encroaching and even abusive federal government.

Consider these remarks by James Madison.  The “father of the Constitution” called the state-led amendment process the “final resort” under the Constitution against federal usurpations and abuses of power.

Should the provisions of the Constitution as here reviewed, be found not to secure the Government and rights of the States, against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution, lies in an amendment of the Constitution according to a process applicable by the States.

source: http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-02-02-02-2138

Hamilton agreed

In Federalist 85, Hamilton agrees with Madison that the state-led process is an effective means of pushing back against a federal government that has abused its authority.

We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority

Madison again

It has been asked whether every right has not its remedy, and what other remedy exists under the Govt. of the U. S. agst. usurpations of power, but a right in the States individually to annul and resist them.

The plain answer is, that the remedy is the same under the government of the United States as under all other Govts. established & organized on free principles. The first remedy is in the checks provided among the constituted authorities; that failing the next is in the influence of the Ballot-boxes & Hustings; that again failing, the appeal lies to the power that made the Constitution, and can explain, amend, or remake it...

Source:  http://oll.libertyfund.org/titles/madison-the-writings-vol-9-1819-1836#Madison_1356-09_1704

George Mason

George Mason had this to say about the amendment process at the Constitutional Convention

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: http://avalon.law.yale.edu/18th_century/debates_611.asp

Myth

This would be a terrible time for a convention.  We’ve never been more divided than we are right now.  

Fact

Actually, we’ve never been more divided than we were in 1861 when we were literally about to start slaughtering each other in farm fields.  

What else were we doing in 1861?  

We were holding the Washington Peace Conference, a convention of states to help stave off that war.

State-led, State-controlled

The states controlled the convention.  The states voted as states.  And the states even proposed a Constitutional amendment that they delivered to Congress. 

source:  https://en.wikipedia.org/wiki/Peace_Conference_of_1861 

Myth

Nullification is an effective and Constitutionally-legitimate approach to dealing with federal overreach.

Fact

Nullification is extra-Constitutional and the states have no way under the current Constitution to effectively nullify federal law.  Federal law stays on the books until Congress repeals it or the Supreme Court rules it unconstitutional.

Virginia and Kentucky Resolutions

Nullification proponents believe that the theory is legally sound and constitutionally consistent, and they point to the Virginia and Kentucky resolutions of 1798 as the basis for that claim.

This sounds persuasive until you realize that none of the other 14 states concurred with these resolutions.  And if indeed all governments rest on opinion (Fed 49), then the shared opinion of those 14 states communicates a clear rebuke of the idea of nullification.

Listen to how some of those states did respond though…

Rejected by New Hampshire

the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government

source: http://oll.libertyfund.org/titles/elliot-the-debates-in-the-several-state-conventions-vol-4#lf1314-04_head_108 

Rejected by New York

The New York Senate said nullification was
no less repugnant to the Constitution of the United States … than destructive to the federal governmentsource: http://oll.libertyfund.org/titles/elliot-the-debates-in-the-several-state-conventions-vol-4#lf1314-04_head_106

Rejected by Massachusetts

Massachusetts not only rejected the idea of nullification.  It even went on to offer the preferred, constitutional remedy – Article V

the people … have not constituted the state legislatures the judges of the acts or measures of the federal government, but have confided to them the power of proposing such amendments of the Constitution as shall appear to them necessary to the interests, or conformable to the wishes, of the people whom they represent.

source: http://oll.libertyfund.org/titles/1908#Elliot_1314-04_1796

Nullification : extra-Constitutional

Madison says nullification is extra-Constitutional and also identifies amendments as the proper, constitutional remedy

“It is no less certain that other means might have been employed which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or they might have represented to their respective senators in Congress their wish that two thirds thereof would propose an explanatory amendment to the Constitution; or two thirds of themselves, if such had been their opinion, might, by an application to Congress, have obtained a convention for the same object.”

Source:  Madison’s Report on the Virginia Resolutions (1800)
http://oll.libertyfund.org/titles/elliot-the-debates-in-the-several-state-conventions-vol-4#Elliot_1314-04_2104 

Nullification : like poison

Madison likened nullification to a poison

“In a word, the nullifying claims if reduced to practice, instead of being the conservative principle of the Constitution, would necessarily, and it may be said obviously, be a deadly poison.”

Source: http://oll.libertyfund.org/titles/1940#Madison_1356-09_1640

Interposition as a collective right, not an individual right

Madison believed interposition had to be used collectively with other states.  It was not the right of an individual state.

In the first place, it conforms to the resolution in using the term which expresses the interposing authy of the States, in the plural number States, not in the singular number State. It is indeed impossible not to perceive that the entire current & complexion of the observations explaining & vindicating the resolns. imply necessarily, that by the interposition of the States for arresting the evil of usurpation, was meant a concurring authy. not that of a single state; whilst the collective meaning of the term, gives consistency & effect to the reasoning & the object.

Source: Madison http://oll.libertyfund.org/titles/madison-the-writings-vol-9-1819-1836#Madison_1356-09_1648 

Nullification : Powder under the Constitution

Madison once likened nullification to putting gun powder under the Constitution and then giving everyone a match.

“On the other hand what more dangerous than nullification, or more evident than the progress it continues to make, either in its original shape, or in the disguises it assumes. Nullification has the effect of putting powder under the Constitution and Union, and a match in the hand of every party to blow them up at pleasure”

Source: Madison to Edward Coles http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-02-02-02-3022&printable=yes 

Nullification : less legitimate than secession

Madison even believed that secession was more appropriate than nullification.  He talks about

... the rightful remedy of a state in an extreme case to be a separation from the Union, not a resistance to its authority while remaining in it…

Source: Madison http://oll.libertyfund.org/titles/madison-the-writings-vol-9-1819-1836#lf1356-09_footnote_nt_171

Myth

The proper response to federal overreach is by using Article VI, not Article V

Fact

Article VI contains the supremacy clause and the oath of office requirement.  There is nothing to do in Article VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Presumably “using” Article VI means putting pressure on your elected officials when they do things that are unconstitutional.

There’s nothing wrong with trying to put pressure on your Congressmen.  But there’s also nothing new about it.  And trying to pressure your Congressmen is a futile exercise today.

It’s futile because the Supreme Court has handed down opinions that say that Congress can regulate almost every area of our lives, and they can tax and spend money on anything they want without any limit (think: national debt).

It’s the structure, not the people

With no real taxing, spending or regulatory restraints, people in Congress tend to vote for someone else’s spending bills because they know that buys them power.  And Congressmen that don’t play that game lose power and influence.  So the temptation is very strong for everyone to vote for everyone else’s spending bill.

“I do not believe that the solution to our problem is simply to elect the right people. The important thing is to establish a political climate of opinion which will make it politically profitable for the wrong people to do the right thing.” 

– Milton Friedman

Fix the structure and the people won’t matter 

Court opinions that have enlarged federal power need to be overturned.  But when those opinions are from the Supreme Court, the people either have to wait for the court to overturn itself (Plessy, Roe), or the people have to amend the Constitution.

Article V

So if we don’t want to wait 50 or 60 years for courts to reverse themselves, the only option left would be the amendment process.

Myth

Scalia was vehemently opposed to the Article V convention at the end of his life.

I certainly would not want a constitutional convention.  I mean, whoa!  Who knows what would come of that?

—Antonin Scalia interviewed with Bernard Kalb, 2014

Fact

Scalia’s remarks don’t conclude with the quote above.  He had more to say on the subject.  And what he had to say undermines the claim that he had changed his mind about the convention process.

The rest of the story…

Here’s how Scalia concluded his remarks…

If there were a targeted amendment, … I think the only provision I would amend is the amendment provision …I figured out at one time what percentage of the populace could prevent an amendment to the Constitution and if you take a bare majority in the smallest states, by population, I think something less than 2% of the people can prevent a constitutional amendment …It ought to be hard but it shouldn’t be that hard.

source: at 1:06:09

2015 Remarks

A constitutional convention is a horrible idea.  This is not a good century to write a constitution.

— Antonin Scalia to the Federalist Society, 2015
https://www.dailysignal.com/2015/05/11/supreme-court-justice-scalia-constitution-not-bill-of-rights-makes-us-free/

Write vs Amend

The use of the word “write” and not “amend” is significant.  Scalia is not lazy with his word choice.  He’s clearly saying this is not a good century to write a new constitution from scratch.

He isn’t talking about the Article V convention in either of these remarks.

Myth

Madison was terrified of having an Article V convention based on his experience at  Philadelphia.

Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second

—Madison to George Lee Turberville, 1788
https://founders.archives.gov/documents/Madison/01-11-02-0243

Fact

Madison was afraid of having another Philadelphia convention.  He’s not even talking about the convention in Article V in this letter.

At the time Madison was writing this letter to Turberville, New York was pushing for a second general convention before the new Constitution had been ratified.  This convention would be Philadelphia, part II – an anything goes convention.