The Last Check: State Convention Pt. II

Testimony of Timothy Dake Before a Special Wisconsin Joint Committee on the Merits of States Calling for an Article V Amendment Convention. He is Representing the Wisconsin GrandSons of Liberty

By Tim Dake – March 28, 2017

Are Delegates to an Amendment Convention compelled to follow the direction their State Legislatures?

One of the basic legislative questions is whether an “amendatory convention” is plenary or whether the convention can declare (impute to itself) full sovereignty. Again, there are two issues at play.

Potential for a Second Plenary Convention – Was a second plenary convention being suggested in 1787? The Anti-Federalists worked hard within the Philadelphia Convention to obtain another plenary general convention for the purpose of reworking the Constitution, with the potential of making broad and unspecified changes. The Federalists resisted this effort as they knew that the result would be a splintering of the United States in several regional confederacies. No good would come of a second unlimited convention and with the failure of the nation imminent, the Federalists were seeking to preserve the Union during these hard economic times.

Never Again an Unlimited (Plenary) Convention – The second issue at play is potential for any future convention to be plenary – which would then have the power to act as the Philadelphia Convention did to write a new government. For the answers, we can turn to the Prof. Max Farrand’s “The Records of the Federal Convention of 1787” published in 1911 and developed from the notes of delegates known to have kept notes during the convention.

The matter of holding a second plenary convention was brought up four times: Once as a suggestion, three times as a formal motion with one time having no seconding, one time being tabled and one time defeated unanimously.

Finally, also on 15 September 1787, Roger Sherman of CT made a motion to strike out words from Article V that would result in “leaving future Conventions to act in this matter, like present Conventions according to circumstances.” That is, with plenary powers. The vote was 3 Ayes, 7 Noes, and 1 Divided. (Farrand, Vol. II, Madison, p.630)

There would be no future second plenary convention for the immediate consideration of the Constitution and no provision for any future plenary conventions. Any modern plenary convention would be unconstitutional, ultra vires and extra legem. We are left only with specialized conventions as legitimate conventions under the United States Constitution of 1787.

What are the Typical Objections Raised Concerning an Article V Amendment Convention?

Having covered these fundamental, foundational issues, I would like to turn to the usual three premises that underscore every objection to an Article V amendatory convention.

  1. “There has never been an Article V Amendment Convention before.”

If we take the wording as presented, that there has never been an officially called federal amendatory convention, then that is true. If we take the claim as it is written then it is anything but true. There were 39 Article V conventions held in 1933-34 for the ratification of the 21st Amendment to repeal Prohibition. There were 15 Article 7 conventions held in 1787-91 to ratify the Constitution. There was a New England states convention held in Hartford in 1814 that debated amendment proposals. The Nashville Conventions of 1850 gathered the southern states and debated an amendment. The closest that we have come to a federal Article V convention was the Washington Peace Conference of 1861 that actually prepared an amendment proposal and sent it to Congress. Three quarters of the states took part, northern and southern and they worked to stave off the Civil War. Unfortunately, it was too late to stop the war. Congress did not act on the proposed amendment.

Outside of Article V, the Locust Convention of 1876 saw 14 states work together. The 1889 convention looked at meat handling. Riparian and riverine conventions such as the Colorado River 1922 have been going on for approximately 200 years. We also have interstate compacts. The Council of State Governments estimates that over 200 compacts are operating. The average state belongs to 37 and Wisconsin belongs to 26. The most recent being the Great Lakes – St. Lawrence River Basin Water Resources Compact formed in 2008. There have been 236 state constitutional conventions, hundreds more planning and statehood conventions for territories, over 80 strictly limited amendatory conventions for the states and territories. Conventions are how we accomplish interstate goals.

  1. “There are no rules for an Article V Amendment Convention:”

Every convention mentioned had rules. Each follows generally the same process, they convene, name interim leaders, then select a Rules Committee and then wait for the committee to develop rules before going about their business. There are multiple organizations making and suggesting rules today for an Article V convention. Ultimately each convention will set its own rules. I looked at the proceedings of hundreds of conventions in preparing the book. Each was about the same in terms of process and rules. There are some variances but not many. This legislature has rules and carried over rules from the previous legislature until it developed its own rules. It operated under a continuity clause from the last set of rules and Congress might state in the call that a new convention was under the rules from the 1787 until the new convention adopted its own rules. Congress was not needed to make rules for Article 5 and Article 7 conventions. The Constitution provides the same amount of rules for each, that is, there are none specified in the Constitution. Yet, the 1933-34 conventions operated and did not runaway. Why are we comfortable with no rules for the Article V ratificatory conventions but not the Article V amendatory conventions?

     3. “Because the rules are not finalized, no one knows what will happen in an Article V Amendment Convention, so that makes it dangerous:”

The Constitution specifies the creation of many bodies and no rules to govern those bodies. There are no rules not just for: Article 5 and Article 7 ratification conventions but for the Electoral College – although it has worked since 1789, the Courts have no rules but continue to operate, the Executive departments, the Post Office and the Patent Office.

Why is there a Provision for States to Propose Amendments?

So the one question that remains, is how Article V and the state-application-and-convention method came to be in the Constitution and why it was there? Some have claimed that the “amendment convention” method was not supposed to be in the Constitution, that it was a last-minute addition. Not true. For each of the four plans introduced at Philadelphia, an amendment process was included and in each the plan involved the States through their legislatures were to introduce amendments. The congressional method was not discussed until the last six weeks of the convention and then as a compromise.

The provision was important to the Framers. They had completed the Revolution just four years earlier and they were seeking to protect themselves and their rights from an out of control, oppressive government. That is how they had seen Parliament a decade earlier. They were unable to amend the unwritten English constitution to protect their rights as Englishmen. Only the British Parliament could do that. Their voice in Parliament was through the colonial legislatures and Parliament had shut that voice down. The Framers sought to protect their British constitutional rights and when they could not, they revolted. Now they worked to protect their new constitutional rights. On the last day of debate, September 15th, Col. George Mason urged the amendment process to go around an obstinate, obdurate government that would not heed the will of the people and respect their rights. He said that he “verily expected this government to one day become as oppressive as the one that they just threw off.” The state-driven “amendment convention” method is there to make sure that the States and the people can go around Congress and the federal government. Congress will never willingly cede power – the “amendment convention” method of Article V is the only way that the States and the people can achieve ultimate control of the federal government. It is unlikely that the states would have ratified the new constitution if this provision was absent.


One of the doctrines of government in our constitution is that of checks and balances. The Supreme Court can strike down a law. The legislature can impeach a president. The president can veto legislation. Each is a check by one branch of government on another. The amendatory convention is the ultimate in the system of checks and balances as it is the only check on the ENTIRE federal government by the people and the States. It is the ultimate weapon for preserving our constitutional rights short of revolution. The power of an amendatory convention is equivalent and identical to that of Congress in the amendment process.

At the conclusion of the very long Wisconsin committee hearing (3/28/17), Tim Dake offered this expert commentary in direct response to the comments from the numerous Article V detractors. Dozens of JBS spokespeople had expressed their falsehoods and fears about states utilizing an Article V Amendment Convention. At the end of over 7 hours of grueling testimony, Tim Dake, got-up to the podium and offered this testimony, using a few quickly jotted notes. This is a summary of his presentation.

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