Nine Myths from the Convention of States Project

Washington at Constitutional Convention of 1787, signing of U.S. Constitution.

Washington at Constitutional Convention of 1787, signing of U.S. Constitution.

By Judi Caler

Rita Dunaway, staff counsel for the Convention of States Project (COS), wrote an article, Five Myths about Article Five, which turns the Constitution on its ear.  Ironically, her article challenges five premises that are true, while invoking at least 9 myths of her own.

In fact, the very name “convention of states,” is being used by Article V convention advocates to deceive state legislators into thinking an Article V convention can be controlled by state legislatures; it cannot.

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Rita’s Myth #1:  A “convention of states” is the only “medicine that can cure the disease of federal overreach…”

False: What did our Founders really say we must do when the federal government usurps power? They never said, “When the federal government ignores the Constitution, amend the Constitution.” Instead, in addition to electing faithful representatives, they advised Nullification.

“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” – Thomas Jefferson; Kentucky Resolutions, 1798

According to the Tenth Amendment Center, “Nullification is any act, or set of actions, that results in a particular law being rendered null, void or even just unenforceable within a particular area.” Nullification applies only to unconstitutional acts of the federal government – to usurpations of powers not delegated.

States, local governments, your County Sheriff or even The People can follow the advice of James Madison and refuse to comply with unconstitutional federal laws right now, without risking our Constitution through a convention. In fact, there were over 200 bills introduced less than one month into the 2015 state legislative season to do just that.

Rita’s Myth #2:  The purpose of Article V is to protect The States and The People from an overreaching federal government.

False: Amendments are meant to correct errors, not to protect The People from an overreaching federal government. Alexander Hamilton at the constitutional convention on September 10, 1787 pointed out that amendments remedy defects in the Constitution. And he tells us in Federalist No. 85 (paragraph 13) that useful amendments would address the “organization of the government, not…the mass of its powers.”

You cannot “fix” federal usurpations of undelegated powers by amending the Constitution to say the federal government cannot do what the Constitution never gave it the power to do in the first place.

Rita’s Myth #3: The reason the drafters added the convention method of proposing amendments to Article V was to give the states a way to bypass Congress.

False: If Article V were meant for states to bypass Congress, it would have bypassed Congress! Article V gives Congress the power to “call” a convention; and Article I, Section 8, last Clause gives Congress the power to make whatever laws are “necessary and proper” to carry out the powers vested by the Constitution, e.g. Article V.

It’s true that George Mason wanted states to be able to make amendments without the assent of Congress and in a manner which did not depend on Congress. However Mason lost on this issue and refused to sign the Constitution.

Rita’s Myth #4:  A “convention of states” is different than a “constitutional convention” because of the source of authority of each. The former derives its authority from Article V itself and is limited to proposing amendments to the Constitution we have; whereas at the constitutional convention of 1787, The States gathered pursuant to their residual powers as individual sovereigns.

False: The only convention for proposing amendments is one called by Congress. And Congress has total power to organize and set it up. But once the delegates assemble, they are the sovereign representatives of The People, as expressed in the Declaration of Independence (paragraph 2) and have the right to alter or abolish our form of government and institute a new one.

Advocacy groups are using semantics to change the meaning of the term “constitutional convention.”  According to Black’s Law Dictionary, a “constitutional convention” is defined as “a duly constituted assembly of delegates or representatives of The People of a state or nation for the purpose of framing, revising, or amending its constitution.” 

COS cannot have it both ways. They cannot proclaim the enormous power of an Article V convention to take back our government; and, at the same time, rein in delegates and deny their sovereignty.

Rita’s Myth #5:  We know how an Article V convention would operate.

False: Neither COS nor anyone else can guarantee what will happen at an Article V Convention. There are no precedents.  With our Constitution at risk, are we to assume 200-year-old “customs” in conventions between a few states would prevail?

Proof that there are no rules for operating an Article V convention is that various organizations of state legislators, including the Assembly of State Legislatures (ASL) and the American Legislative Exchange Council (ALEC), are working furiously to hammer out rules. However, any finished product of such groups will have the “force” of a suggestion only.

The Congressional Research Service (CRS) Report issued April 11, 2014[1] confirms that Congress most likely will claim authority over the power to organize and set up an Article V convention. Because of lack of precedent and so many unknowns, the CRS Report suggests on page 27 that they’ll have to call a convention to see what sort of convention they’ll get: general, limited or runaway!

Rita’s Myth #6: The reason we haven’t had an Article V convention yet is because there have never been 34 applications requesting a convention on the same topic.

False: This is speculation. Since Congress is given the power to “call” a convention, Congress decides how to count the applications. The hundreds of applications sent in thus far may not have met Congress’s criteria in terms of wording, timing, or any number of factors; or perhaps Congress has resisted calling a convention for reasons of its own.

Rita’s Myth #7:  A limitation on the topic is necessary in order for state legislatures to provide instructions to the delegates.

False: There is nothing in Article V that calls for instructions to delegates. Since delegates can do whatever they want once the convention is convened, delegate instructions serve only as a gimmick to secure legislators’ votes on applications by giving them a false sense of security in thinking they can control what is totally out of their hands.

Rita’s Myth #8:  Topics for an Article V convention can be limited so that convention delegates cannot re-write the entire Constitution once they assemble.

False: The delegates who represent “We the People” have the inherent right, as expressed in the Declaration of Independence, to alter or abolish the Constitution and disregard any limitation placed on them by state legislatures, Congress, or anyone else. This is what happened at the constitutional convention of 1787 which was called by the Continental Congress for the sole purpose of amending the Articles of Confederation. The result was a new Constitution with a new mode of ratification. There is nothing to prevent that from happening today.

Rita’s Myth #9:  There are adequate safeguards in place to assure state legislators are in control of a convention, e.g. topic limitations, the ability to recall delegates, and the ultimate safeguard which requires 38 states to ratify any ill-conceived or illegitimately advocated proposal.

False: Delegates to an Article V convention would have more power than the federal or state governments and cannot be controlled by state laws.  Topic limitations and Delegate recalls may be ignored. Also, Delegates may make their proceedings secret, as they did at the “amendments” convention of 1787, and they may vote by secret ballot.  If this happens, States won’t know what is going on at the convention.   If the States don’t know what is going on at the convention, then how will they determine whether to recall their Delegates or criminally prosecute Delegates who “violate their oaths” to obey the instructions of their states?

Furthermore, the ratification process may be changed. The Articles of Confederation required all of The States and the Continental Congress to ratify amendments. Nevertheless, the framers wrote a new Constitution with a ratification requirement of only 9 states (3/4 of those present). One Constitution waiting in the wings for a convention to be called would establish a dictatorship and require ratification by a referendum called by the President!

The only guarantee of power state legislatures have in the Article V convention process is to apply for a convention. Legislators are being duped by Article V convention advocates into believing they can necessarily control the convention rules and the ratification process. Congress controls the “call” and after the convention convenes, the delegates can do whatever they want, including rewrite the Constitution. Does anyone really believe that radical factions with ill-intentions will politely sit on the sidelines and relinquish the opportunity to participate in the demise of our beloved Constitution?

[1] The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, Thomas H. Neale, April 11, 2014.

Judi Caler lives in Nevada City, California and is Article V Issues Director for Eagle Forum of California. She is passionate about holding our public servants accountable to their oaths to support the Constitution we have.


This article is printed with the permission of the author(s). Opinions expressed herein are the sole responsibility of the article’s author(s), or of the person(s) or organization(s) quoted therein, and do not necessarily represent those of American Clarion or Dakota Voice LLC.

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  • http://publiushuldah.wordpress.com/ Publius Huldah

    Excellent expose’ of the myths the convention of states people put out. Rita Dunaway is a lawyer and should be able to think for herself. But she repeats the standard line everyone in the convention of states project seems to be pushing. A 7th grader could write what Dunaway wrote. What are they teaching in the law schools these days?

    • Thirstiest

      Supporting nullification over a convention to propose amendments the author stated: “In fact, there were over 200 bills introduced less than one month into the 2015 state legislative season to do just that.” But she did not mention how many of the 200 passed, nor how many unconstitutional laws remain more on the books and what percentage of these unconstitutional laws were addressed by these 200 bills — with the massive government overreach I suspect it was a drop in the bucket, time for the states to meet!.

      • http://publiushuldah.wordpress.com/ Publius Huldah

        Much misinformation is put out by nullification deniers - so the Truth tellers are faced with a massive re-education effort. And we are having success: http://tenthamendmentcenter.com/2015/08/07/wall-street-journal-calls-for-state-resistance-to-new-epa-regulations/
        I know this sticks in the craw of the convention supporters who want us to believe that an Art. V convention is the only way out.
        But the claims of the nullification deniers have been proven to be false.

        The point of Caler’s paper, of course, is that the the COS people are saying things which are not true….

        • Thirstiest

          I am trying how to gauge the success of ousting laws that shouldn’t be passed to begin with … I think the crappy laws are coming faster than they are being knocked down by the states. Using less water to flush our toilets may increase the clean water supply, but it isn’t going to prevent a drought.

  • EvanRavitz

    The First Principle of the US is, “The People are sovereign.” People, not the Fed, and not the states.
    ALL the founders knew their limits and wanted us to have the form of government WE want. Jefferson thought we should have a new constitution every 19 or 20 years:http://www.usconstitution.net/consttop_newc.html
    The last time we had a constitutional convention we got… the Constitution! Oh what a tragedy! Jefferson said we should completely redo the constitution every 19 or 20 years. It’s high time we amended it. About 80% of both Republicans and Democrats want to get big money out of politics. That’s the most likely amendment. And the Equal Rights Amendment, which the states never ratified. And national ballot initiatives so that we don’t have to wait another two centuries for a constitutional convention when Congress doesn’t represent the people. Oh the horrors of people fixing what politicians refuse to. Many states and countries have had constitutional conventions with great success. Iceland is a great recent example.

    There is good news about a coming convention. See the intro to http://vote.org

    • http://publiushuldah.wordpress.com/ Publius Huldah

      Jefferson wasn’t talking about the federal Constitution.
      Were you aware that the States each have a State Constitution?

      You need to learn the difference the federal Constitution and the State Constitutions before you pontificate on this issue.

      • EvanRavitz

        Here are Jefferson’s words in his letter to Madison: “Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.” http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html

        You need to use your real name and photo before you lecture real people. And do real research, instead of making stuff up.

        • http://www.americanclarion.com/ Bob Ellis

          “You need to use your real name and photo before you lecture real people.”

          You mean like Publius (Madison, Hamilton and Jay) did when they wrote the Federalist Papers?

          • Thirstiest

            Publius Huldah disrespects the framers by suggesting We The People stop following the Constitution — while using the name “Publius” ! Hypocrite!

            • WXRGina

              What are you talking about? Ms. Publius does no such thing.

              • Thirstiest

                Asking citizens to stop their effort to convene a convention for proposing amendments is asking citizens to stop following the Constitution, that’s what I am talking about.

              • WXRGina

                No, she’s not “asking citizens to STOP following the Constitution.” She has solid reasons for rejecting a constitutional convention (yes, that’s what it would be), and she offers them repeatedly.

              • Thirstiest

                Those who fear people bearing arms have their reasons also, but their arguments have not convinced me to reject the 2nd amendment, and Joanna’s unreasonable “reasons” haven’t convinced me to reject a convention for proposing amendments. A convention for proposing amendments is constitutional, but she opposes holding one … that is absolutely opposing the Constitution, and asking others to do the same.

              • WXRGina

                Joanna? Are you using her real name? If so, perhaps you have a personal grudge against her, because you are a leader in the COS movement.

              • Thirstiest

                Why would you assume I have a personal “grudge” against her? Do you have a personal relationship with her that prompted you to try to come to her defense? I do find it counter productive to use “Publius”since it is a name used by another with whom she has little in common. Her name is Joanna, is there a reason you can cite for me not to use her real name? And not only does she oppose the Constitution, (even thinks it was illegally adopted) She further cannot (or refuses to) answer pointed questions when I posed them in the past.

              • WXRGina

                You protest quite a bit, don’t you?

              • Thirstiest

                just noted that Joanna opposes the Constitution, and doesn’t support her “reasons” when confronted with pointed questions. Does that bother you for some reason? A fraud is a fraud … no matter what name she chooses to use.

              • WXRGina

                You’re done posting baseless insults against Publius Huldah here. Knock it off-now. This is your only warning.

            • LadyImpactOhio

              Ummmm, strange that your Disqus is protected. What don’t you NOT want others to see what you said? hypocrite!

      • Thirstiest

        And you, Joanna, need to learn the difference between supporting and opposing the Constitution of these United States of America. Are you able to stop lying to the readers … have you any honor at all? Your choice of husband reveals more about you than your choice of the name “Publius Huldah” hypocrite!

        • LadyImpactOhio

          Here we go again. Alinsky tactics. Instead of facts, just get nasty. It goes on and on with these Article V people. Only 2 things in the world make people behave like this: the gain of money and/or power.

          Why don’t YOU use your real name?

          • Thirstiest

            What facts have I refused to provide that have any bearing on the subject of the article? I asked for facts from Joanna who promotes nullification as the proper remedy to federal government overreach when she responded that 200 nullification bills had only recently been presented, yet, she chose not to answer, just spew and split, honorable gal there! Do you know how many of the 200 bills she said were proposed to nullify unconstitutional laws actually passed? Or how many more unconstitutional laws came down the pike that are in need of nullifcation? She spews stuff that she refused to support with facts — a real name is not the issue .. the choice of PUBLIUS is hypocritical!

  • EvanRavitz

    My congressman and friend Jared Polis told me that this Congress expects all 34 applications during JUST their tenure before they call a convention. In other words, they interpret “The Congress,” in Article V, to mean “a Congress”! That’s when you get with a Congress of millionaires! It’s all about them.

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  • http://publiushuldah.wordpress.com/ Publius Huldah

    Thirstiest is not telling the truth - she or he is lying. Where and when did anyone ask me a question about this issue where I gave an Answer I couldn’t back up with documentation? Every COS groupie and leader out there knows quite well that I have the facts at my fingertips and can recite from memory where one can find the documentation - often down to the paragraph number.

    That’s why they won’t face me and say these things to my face. That’s why they smear me behind my back.

    Editor! Demand that thirstiest back up his accusations with documented proof.

    • Thirstiest

      Here is the question I asked 4 days ago, that you did not answer, all you said is that there is much misinformation and that the COS supporters are lying, obvioulsy not an answer to support the idea that nullification is going to stop government overreach: “Supporting nullification over a convention to propose amendments the author stated: “In fact, there were over 200 bills introduced less than one month into the 2015 state legislative season to do just that.” But she did not mention how many of the 200 passed, nor how many unconstitutional laws remain more on the books and what percentage of these unconstitutional laws were addressed by these 200 bills — with the massive government overreach I suspect it was a drop in the bucket, time for the states to meet!”

    • http://www.americanclarion.com/ Bob Ellis

      I concur. Thirstiest, you’ve been overselling your contentions here all day, and I’ve been patient. You can have reasonable disagreement on certain issues and certain points, but you must have a factual basis for your disagreement.

      You want some documentary evidence? Provide some for your oversold position.

      • Thirstiest

        gosh Bob I only asked for some proof that nullification is a better method than convening an amending convention, no supporting facts given. 200+ nullification bills according to the author, how many passed? Obviously not enough to stop the overreach, its a losing battle.

    • Thirstiest

      Joanna … demanding we not amend our Constitution when we have a provision to amend contained in ArtV is asking to ignore our Constitution. nullification is not a big enough tool, … far too many to nullify!

      • http://www.americanclarion.com/ Bob Ellis

        I asked you for documentary evidence to support your contention, and you have failed to do so.

        You should also respect a person’s use of a nom de plume or pseudonym, especially since I’m relatively certain your parents didn’t name you”Thirstiest.”

        If you can’t live by the requirements you expect of others, you’ll be blacklisted from leaving any more comments here. That might be good for you. A wise person listens at least twice as much as he talks.

        • Thirstiest

          what contention did you ask me about

          • http://www.americanclarion.com/ Bob Ellis

            Which one did you make? (My patience is this far ” from being exhausted)

            • Thirstiest

              what documentation are you requiring of ME? I merely asked about the writer’s nullification claims to be backed up (200+ bills with no mention of how many became laws), and how many more to needed to reign in the fed overreach. Joanna mentions that nullification is misunderstood (or something to that effect) yet gave no stats to show how nullification is a viable method or even Constitutional, but that wasn’t the issue I raised, it was how to gauge the success/failure of nullification. It has not prevented government overreach — is that clear enough?

  • http://publiushuldah.wordpress.com/ Publius Huldah

    I have written on nullification several times - here is the most recent: http://www.americanclarion.com/nullification-is-a-natural-right-37794 I prove beyond a reasonable doubt that nullification is the natural remedy our Framers advised. You can not contradict a word I said. Not a word. No one can. All you people can do is smear the Truthtellers.

    And here is a paper I wrote over 5 years ago which The Tenth Amendment Center recently published: http://tenthamendmentcenter.com/2015/08/04/what-should-states-do-when-the-federal-government-usurps-power/

    Here it is on my website: https://publiushuldah.wordpress.com/2010/04/03/what-should-states-do-when-the-federal-government-usurps-power/ I posted it originally in the Spring of 2010.

    And lo! The Wall Street Journal is seeing the light: http://tenthamendmentcenter.com/2015/08/07/wall-street-journal-calls-for-state-resistance-to-new-epa-regulations/ The author of the article at the WALL STREET JOURNAL has read Federalist Paper No. 46!

    Mrs. Caler didn’t say the 200 nullification bills had been passed, you moron. She said they had been “introduced”. The point is that those who are teaching the rightful remedy our Framers actually recommended are making progress. It took 5 years to make Federalist Paper No. 46 mainstream among the intelligent. It will take a long time to filter down to the morons. Perhaps your grandchildren will get it.

    I hereby throw my glove in the face of the nullification deniers: Can ANY OF YOU present an intelligent rebuttal of anything I have written on nullification? Go on - send me a nullification deniers who has a brain. I’m done dealing with morons.