Article V Problem Analysis

The Problem with Popular Analysis: A Comprehensive Literature Review on the Article V Convention

By Samuel Fieldman

1. Literature Review on the Article V Convention

Every reliable scholarly source analyzing the Article V Convention for Proposing Amendments^[1] agrees that there is no risk a limited convention call could lead to an amendment on another issue. Unfortunately, the popular media on the subject presents the complete opposite picture, with one prominent convention opponent declaring that “[a] number of prominent jurists and legal scholars have warned that a constitutional convention could open up the Constitution to radical and harmful changes.”^[2] The Supreme Court warned against reliance on ipse dixit, “a bare assertion resting on the authority of an individual.”^[3]

In this Article, I will provide a review of the modern scholarly literature. This includes both the majority and minority view. I will then critique the unreliable sources in which far too much faith has been placed by legislators, the legal community, and the public. In the best-case scenario, these repeat viewpoints that are found in the scholarly analysis, but they stem from mutually incompatible theoretical frameworks and hence no scholar needing to submit their work for review would be able to defend such a position. In the worst-case scenario, quotes are taken out of context to make it appear as though scholars held viewpoints antithetical to their incontrovertible positions.

The misinformation that originated during the debate over prohibition, spread among professionals in the 1960s and 70s and was pushed on politicians and newspapers in the 1980s and 1990s today is spread by groups ranging from Common Cause and the Center for Budget and Policy Priorities on the left to the Eagle Forum and John Birch Society on the right.[4] Most of those spreading lies about the Convention process believe it themselves, having read well placed but unreliable sources that they understandably have come to trust. But no one should accept “opinion evidence which is connected to existing data only by the ipse dixit of the expert.”^[5]

1. What Makes a Source Reliable?

Research Methods for Graduate Business and Social Science Students (“Research Methods”) offers basic guidelines in assessing the reliability of sources. They include, in relevant part, “[1] Is it clear which organization is responsible for the contents of the work?… [2] Do you know who wrote the article and his or her qualifications for writing on this topic?… [3] Are the sources for any factual information clearly listed so that they can be verified in another source?… and [4] Are the editors monitoring the accuracy of the information being published?”^[6] A discussion of commonly trusted but ultimately unreliable sources will demonstrate the importance of each criterion. However, to qualify for inclusion in this review, the fourth criterion will be paramount.

Dozens of peer reviewed articles have been written consistently extolling the virtues of limited amendment conventions dating back to the first volume of the Yale Law Journal in 1892.^[7] When peer review has been rigorously applied, the minority of scholars who believe a convention cannot be limited have consistently argued that their reasoning inherently commits them to the view that new limited convention calls today are either redundant or invalid, and hence of no consequence.

Major non-partisan governmental and institutional examinations of the subject from the American Bar Association, the Department of Justice, and the Congressional Research Service provide among the more thorough evaluations of the scholarship. These sources, too, have been consistent from early treatises in the 19^th century through comprehensive reports published by Congress throughout the 20^th century. However, one must bear in mind the context of these sources that attempt to balance all sides to be apolitical. While they universally conclude that a convention can be limited, they provide a misleading impression of the quality of the opposition sources.

Books are included only sparingly, when they are the best available source and when an independent check of their sources reveals them to be well researched and reliable. In cases where the scholarly resources have not adequately addressed a point, court cases and other primary sources will be used. However, as the purpose of this paper is to demonstrate the consistent views from the literature, this will be done only sparingly and mostly to update or correct views already discussed by other research.

1. The Modern Consensus on Article V

The majority view argues “once two thirds of the states apply for the same limited convention, Congress is obligated to call that limited convention. Moreover, the convention is required to conform to the limits in Congress’s call. If the convention were to violate the limitations in the call— if it were to propose an amendment that was not within the scope of its authority—then that proposal would be unconstitutional. It would not represent the type of proposal that is allowed by the Constitution and could not be legally ratified by the states.”[8] Scholars disagree on the theoretical reasons they believe a convention should be limited as well as the strength and validity of various practical tools to enforce those limitations. However, there is no need for all tools to succeed simultaneously to limit a convention. Rather, for a convention to run away, all tools would need to fail simultaneously. While the members of the majority disagree about which tools they trust, they all agree that the chances that all of them will simultaneously fail are comparable to the chances that “Congress tomorrow might pass a law… eliminating Christmas.”[9]

Even members of this majority read unreliable sources and mistakenly believe themselves to be alone in a sea of literature opposed to the process.[10] It is unsurprising that well-meaning counselors would see these same sources and then misread more reputable sources with confirmation bias.[11] In January 2019, the Counsel to the General Assembly of Maryland wrote a letter that cited numerous sources of varying quality.[12] The letter cited a 2016 paper by Vincent Pulignano[13] to justify the notion that “numerous commenters continue to urge states not to call for such because key questions about the process and scope are unresolved.” Reached for comment, Mr. Pulignano explicitly called that statement out as a mischaracterization and explained that “the purpose of [his] article was not to dissuade states from calling for and implementing an Article V Convention.” [14]

1. Theoretical Arguments for a Limited Amendatory Convention

Scholars in the majority endorse one or more of three basic theoretical underpinnings for the view that an amendment convention can be limited: i) “The ‘equality argument’ takes it as a given that Congress is free to propose single amendments limited to a single topic… . If the states are equally able to initiate the amendment process, the states should be equally able to limit the subject matter of proposed amendments. The structure and history of Article V fully support the basic premise of the equality [argument].”^[15] ii) “The argument by practice points out that… Article V has a plain meaning that is cognizable by elected officials at both the state and national levels, representing diverse parts of the country, carried out over a long period of time.”^[16] iii) The consensus argument notes that “[t]he Founders established a process for amending the Constitution that requires substantial agreement within the Nation to alter its fundamental law… . The infrequency with which the Constitution has been amended attests not just to the genius of the original design but also to the difficulty inherent in securing the broad consensus required by Article V.”[17]

2. Checks and Balances in the Majority View

“While Article V itself names only the States and Congress as participants in the amending process, the Judiciary, the States[, the Delegates] and the Congress are now a [quartet] balance of powers with respect to Article V conventions and the amending process in general.”[18] State powers include i) the call of the convention,[19] ii) the enforceable right to extending limited authority to the convention, [20] iii) direct control over their delegates, and iv) ultimate authority over ratification. [21] Congressional powers include i) the responsibility over counting convention calls; ^[22] ii) the power to regulate the convention process; ^[23] iii) the power to refuse to send an improperly proposed amendment to the states for ratification;[24] iv) the ability to usurp the convention’s purpose by proposing the amendment themselves. [25] Judicial powers include i) authority to declare and enforce rights, even against congress;^[26] ii) injunction against states against improper exercise of their Article V powers; ^[27] and iii) enforcement of limitations imposed on delegates and the Convention. Delegate powers include i) formulation of the amendment language; ^[28] and ii) representation of the will of their constituents.[29]

1. Role of the States

The role of the states to call a convention is written directly into the Constitution, as is their ultimate control over ratification.[30] Though rarely discussed by Article V Convention scholarship, legal standing to enforce their own limited convention calls follows from this constitutional role.[31] “Founding-Era practice informs us also that commissioners at an amendments convention were to operate under agency law and remain within the limits of their commissions.”[32] However, the U.S. Constitution includes two additional types of conventions and the implications of these precedents to show that states have direct control over their delegates has not been adequately discussed in the literature.

Article VII of the U.S. Constitution provides that “Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Connecticut, Virginia, New Hampshire, Massachusetts, and North Carolina all discussed the possibility of instructing delegates and all of them found that the constituents could instruct and bind their delegates if they so choose.^[33] There was great debate in New Hampshire about the wisdom, though not the power, to issue binding instructions.^[34] Many delegates refused to vote for the Constitution until their constituents agreed to first change their instructions to vote no.^[35] In the town of Boscawen, when their delegate threatened to vote for the Constitution even if instructed otherwise, the town recognized their power to recall and replace him, though they ultimately decided to allow him to attend the convention uninstructed.^[36]

Article V of the U.S. Constitution provides, in part, that “amendments to this Constitution… shall be valid to all intents and purposes, as part of this Constitution, when ratified by… conventions in three fourths [of the several states]… .” These Article V Ratification Conventions were held for the first and only time 1933 to ratify the Twenty-First Amendment. “In nearly all the state laws… the intention to confine… the delegates principally to casting votes in conformity with the expressed will of the people. However, although this was what actually happened, few of the laws specifically bound the delegates to vote in accordance with the result of the ballot. A few of them did.”^[37] Arizona, though, took inspiration from Boscawen, New Hampshire, and legislated that any runaway delegates would see “his vote not considered, and his office deemed vacant.” ^[38]

1. Role of Congress

The role of Congress and all its powers have been thoroughly studied by scholars for the past century. One point that most scholars have missed, however, has been how the Twenty-Seventh Amendment reaffirms their role in ensuring consensus, whether consensus in ratification or in counting convention calls. The Twenty-Seventh Amendment was proposed by Congress in 1789, but not ratified until 1992. However, by the time the Archivist of the United States proclaimed it ratified, thirty-four states had ratified it as part of a continuous modern political movement during the preceding fourteen years. None of the states that had ratified in the 18^th and 19^th centuries rescinded their ratification and one reaffirmed their ratification, making the presumption of consensus on the part of Congress reasonable. States continued to ratify after the proclamation, reaching 38 modern ratifications in 1995, just three years later, affirming Congress’ conclusion.

1. Role of the Judiciary

Scholars have thoroughly studied the many Supreme Court cases granting reasonable discretion to Congress in exercise of their powers incident to ratification and enforcing the proper role of the states.[39] A 1951 paper analyzed analogous cases involving State conventions to conclude that, while minor procedural irregularities do not invalidate the product of an amendatory convention, limitations as to the substance of the convention and procedures designed to ensure the proper consensus necessary to amend the Constitution will be enforced by the judiciary. ^[40] The Florida State Supreme Court affirmed this conclusion in 2008, issuing an injunction to prevent ratification when a convention limited to proposing amendments on budgetary issues exceeded its author “exceeded its authority in proposing… two amendments.” ^[41]

1. Role of Delegates

The two best defenses of the protection derived from the process of electing delegates come from John Hoober in 1892[42] and Paul J. Wever in 1986.[43] By 2015, however, some had begun to express a “lack of trust [that] is fatal because arguably the most pressing reason for calling an Article V convention is that the system of elections is broken.” [44] In a single-issue election across the political spectrum where the issue is the corrupting influence of money in politics, however, the influence of corporate money is frequently counterproductive, restoring this protection.[45] Thus, while other issues may need to fall back on additional protections, the use of the Article V Convention to restore free and fair elections has an extra safeguard not found in other efforts.[46]

3. The Minority View: New Convention Calls Are Irrelevant

The minority view takes a bare bones examination of the text of Article V and finds nothing in the language indicating any limits. Yet proponents of this view support the central thesis of this paper that “there is no risk a limited convention call could lead to an amendment on another issue.” The minority view splits, broadly, into two camps: i) applications on different limited subjects can be counted together, making any new convention call redundant after the first thirty-four states with applications;[47] and ii) only unlimited convention calls are of consequence and so new limited convention calls are irrelevant.[48] Many in the camp arguing against the validity of limited calls were part of political efforts opposed to the policies behind those calls. In many cases, as demonstrated below, they are not reliable sources. But even taken at face value, they support the overall conclusion that limited calls are safe because, on their view, they are invalid anyway.

1. A Summary of Unreliable Sources

The most effective unreliable information comes from sources that are generally regarded as reliable. When the John Birch Society makes false claims about the views of America’s founders, it is frequently ignored or ridiculed. However, the Eagle Forum has been far better at getting their talking points into others’ mouths[49] so it is no longer “clear which organization is responsible for the contents of the work.” These sources are often repeated in newspaper op-eds where the author is a scholar or even a Supreme Court Justice and nobody questions “his or her qualifications for writing on this topic” as opposed to the area of law where they have published their scholarly work.[50] When the speakers are regarded as trustworthy, they are believed, even if there is no “factual information clearly listed so that they can be verified in another source” and even if that factual information is blatantly false.[51] In some cases, these types of sources are even published in law journals and one must look closely to show that “editors [are not] monitoring the accuracy of the information being published.” [52]

1. Is it clear which organization is responsible for the contents of the work?

The Eagle Forum is not new to creating well placed questionable sources. In the 1980s, they opposed the balanced budget amendment because they feared the amendment could lead to higher taxes.[53] “Schlafly produced one of her most effective anti-Con Con pieces when she convinced former Chief Justice Warren Burger to write a one-page letter opposing a constitutional convention.”[54] Justice Burger was a well renown expert in the Revolutionary Convention in Philadelphia, but never studied the Article V Convention process in any scholarly manner. The one page letter given by him to a political activist while they served together on a commission should not be given much weight.

2. Do you know who wrote the article and his or her qualifications for writing on this topic?

Unlike their published articles, when a legal scholar writes “a simple newspaper op-ed”[55] outside of their area of expertise they are often starting from scratch on their research and, absent the scrutiny of peer review, may not carefully examine the context behind the first sources they see.[56] They may be untrustworthy because they are written for political motives^[57] or because the author just thought it was interesting and “didn’t expect to get anyone so excited about [what he thought was a] relatively peaceful topic.”[58] The purpose of an op-ed is “get people interested in important issues of the day.” [59] There is nothing wrong with that. But too often they are treated by legislators and the public as equivalent to peer reviewed research.

3. Are the sources for any factual information clearly listed so that they can be verified in another source?

In the most egregious cases, someone who has studied the subject and should know better spreads outright false information. David Super’s area of expertise is budgetary issues, but he is smart and knows the sources. And yet, he has repeatedly the out-of-context 2014 quote by Antonin Scalia: “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”[60] As Super is aware, “[i]n the 1970s, as a professor, Scalia argued that a convention was worth the risks he saw at the time. [But Super claimed] [b]y 2014, as a Justice, Scalia seemed to have grown much more worried about those risks.”[61] However, the notion that these seventeen words from Justice Scalia represent a reversal of his thorough defense of the Convention process would require an incredible presumption that Scalia was capable of subtly.[62] In context, one can see that Scalia’s 2014 quote was actually an argument that the protection of the ratification over the amendment process is not only strong enough to prevent unwanted amendments, but so strong that it can even at times prevent necessary amendments. The idea that he found an amendment proposing convention dangerous is false.

Question: “Justice Stevens recently suggested a constitutional amendment to modify the 2nd amendment. If you could amend the Constitution in one way, what would it be and why?”

Answer: “I certainly would not want a Constitutional Convention. I mean, whoa, who knows what would come out of that. But if there were a targeted amendment that were adopted by the States I think the only provision I would amend is the amendment provision. I figured out one time what percentage of the populis 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.”[63]

4. Are the editors monitoring the accuracy of the information being published?

It surprises many, but even law journal “editors [do not] monitor[] the accuracy of the information being published” in every page of their journals.^[64] There are legitimate uses for these sources, but unbiased and thorough legal analysis is not one of them. Laurence Tribe’s 1979 testimony in California against a balanced budget amendment convention call has been raised to show his questions about the Convention process. Tribe knew the political nature of his statement and never intended it to apply outside the context of the balanced budget convention effort. That is why, in 2011, even after a talk summarizing these questions, Tribe stated unequivocally that:

“I would also object very much to someone who said that because I don’t know the answers to all the questions about an Article V Convention, I would oppose ever having one. And that’s why I made very clear that I don’t take that view.”[65]

1. The Founding Era through the Civil War: 1786-1867

Fear mongering about the Convention process by those opposed to the policy sought by a Convention effort began in the earliest days of our Republic. Today, it is easy to cherry pick statements by our founders without context to make it appear as though they opposed the use of the Article V Amendatory Convention. However, an examination of the context shows universal recognition of the propriety of the process, provided one agrees with the purpose for which it is being used.

1. The Conventions of Alexander Hamilton

In 1786, four States sent delegates to Annapolis to discuss trade under the Articles of Confederation. [66] But as Shay’s Rebellion capped a series of frightening revolts, [67] the fifth state, New Jersey authorized its delegates “to provide for the exigencies of the Union.”[68] As neither the Convention call nor the other state authorizations allowed for a goal so broad, Alexander Hamilton called for new Convention to meet in Philadelphia with these exigencies of the Union in mind.[69] Congress, as well as 10 of the 12 States to send delegates to Philadelphia used similarly broad language.[70] Many at the time argued that the Philadelphia Convention ran away from its authorization.^[71] Hamilton fiercely disagreed.[72] Though modern scholars who believe the Philadelphia Convention ran away, argue that the protections in place under the Constitution make such an event in our current system impossible.^[73]

Hamilton had a pony express rider waiting at the New Hampshire Convention to bring the news of ratification to New York where two factions waged war over the Constitution.^[74] “[M]any states were sending in requested amendments with their ratifications… . With the number of ratifying states at ten [by the time New York ratified], the Constitution was now in effect, and the only legitimate road open to amendment and modification was through Article V.”^[75] The New York Convention ratified the Constitution, but also unanimously approved a circular letter to be sent to all state legislatures calling for an Article V Convention limited to consideration of “the Amendments proposed by this or other States.”^[76] The letter was “[w]ritten primarily by John Jay, with the assistance of John Lansing, Jr., and Alexander Hamilton.”^[77]

1. The Conventions of James Madison

Many statements from James Madison and other founders[78] during the time period from the Philadelphia Convention through the proposal of the Bill of Rights have been mistakenly (or intentionally) interpreted to claim he opposed the process. Nothing could be farther from the truth. For example, Madison had concerns about the Convention process as it stood in the September 10^th, 1787 draft of the amendment procedure because it contained no ratification provision. ^[79] In this context, Madison wondered about “the vagueness of the term, ‘call a Convention for the purpose’ ” and especially about “the force of its acts.” ^[80] Once a ratification was added, Madison “had “no objection however against providing for a Convention for the purpose of amendments” except for insignificant procedural questions. ^[81] The entire Convention voted unanimously in favor of including the Convention procedure. ^[82]

Madison lived long enough to play a role in the first three efforts to use the Article V Convention process and in each case his position was based on policy, not process. Madison opposed many of the amendments proposed by the state ratification conventions and did not want to see a convention alter the workings of a Congress that had not yet even met. ^[83] But with the prodding effect of the New York Circular Letter, ^[84] “Madison astutely heeded the concerns of the Anti-Federalists and promised the introduction of a Bill of Rights in the First Congress and the calls for a second convention abated.”^[85]

With the 1798 passage of the Alien & Sedition Acts, Madison found himself on the other side of an amendment effort. He demanded an “explanatory amendment” to clarify the First Amendment and called for “two thirds of [the States], if such had been their option… by an application to Congress… obtain a convention for [this] object.”[86] John C. Calhoun twisted Madison’s argument to support his own view that States inherently had the power to nullify Federal law. [87] Madison, knowing that the Article V Convention process cannot succeed without overwhelming support, goaded Calhoun into using that process to put nullification into the Constitution.[88] The Convention effort failed, just as Madison knew it would.[89]

1. Nineteenth Century Convention Scholarship

John Jay, the first Chief Justice of the Supreme Court and author of the New York Circular Letter calling for an Article V Convention was not alone among early scholars. Associate Justice of the Supreme Court Joseph Story, in his landmark 1833 treatise Commentaries on the Constitution of the United States, endorsed the views of St. George Tucker.^[90] Tucker, author of the first prominent treatise on American Constitutional Law and attendee to the Annapolis Convention, originated the argument that the amendment process “must necessarily be attended with such obstacles, and delays, as prove a sufficient bar against light, or frequent innovations.”^[91]

John Alexander Jameson’s landmark 1867 treatise, The Constitutional Convention, argued that conventions can be limited by the entity that creates them, so long as they do not usurp the role of the convention in formulation of the amendment language.^[92] Jameson further argued that the sovereign body or their representatives can create binding instructions on delegates to the convention. ^[93] Jameson’s treatise concerned the concept of conventions generally in American law, primarily based on precedent from state conventions. Jameson compared the legal status of the Article V Proposing Convention to these State Constitutional Conventions that could be limited. ^[94]

1. A Populist Response to the Gilded Age: 1891-1961

In the desperation of the Gilded Age, the academic curiosity of Convention law gave way serious study of it as a practical tool. Treatises would continue to be published,^[95] of course, but in the late 19^th century law journals started to become an important new part of scholarship. The first volume of the Yale Law Journal in 1892 included a Shakespearean defense of delegates to a convention with the power to formulate amendment language, as well as the safety-net of ratification to protect the public from delegates with ill-intent.[96] In the 20^th Century, activists would put this theory into practice with a wave of calls for an Article V Convention. With the activists would come the first wave of their opposition.

1. Progressive Era Activism

“The push for the Seventeenth Amendment became part of our Constitution because of the Progressive Movement of the early part of [the twentieth] century….”^[97] The first call for an Article V Convention on the issue of Direct Election of Senators occurred in Nebraska in 1893^[98], the first Convention call in nearly three decades. But without a national organization behind it, the proposal had no real impact. “In 1900, Pennsylvania’s legislature formed a standing committee to investigate the best method of achieving the goal. The committee accurately predicted that the threat of a convention would force the hand of Congress. The Pennsylvania legislature then sent their resolution to all of the other state legislatures to use as a model and exhorted the other states to pass parallel resolutions.”^[99]

It is difficult to overstate the fervor with which the states responded. Such was the zeal that in March of 1907 alone, Nevada passed two separate calls.^[100] But this convention effort did not occur in a vacuum. States with a single dominant party began to hold “primary” elections that were non-binding but were influential on the state legislature that chose the Senators under the unamended Constitution.^[101] The “Oregon System” built on that early success in 1904 by holding a non-binding direct election for Senators and creating a state-sanctioned pledge that the legislators elected would vote for the winner.^[102] Every tool available worked together to influence the vote in the Senate.

By the time the Senate agreed to propose the amendment in 1912, many Senators, like William Borah of Idaho, were in place because of elections.^[103] Some, like both Senators from Montana, had served in their State Legislatures when they called for the Convention on this issue.^[104] In the end, when thirty-one applications had been submitted to Congress and it seemed imminent that the matter would be removed from the hands of Congress, the Senate voted in favor of the Amendment.

1. Split Between Popular and Scholarly Sources

Among scholars, the response to this new precedent was to add it to the body research. Some speculated on the potential policies for which the Convention could be used in the new Progressive Era.^[105] In another, an economist, writing in a law journal, speculated about whether or not the Supreme Court could protect against a runaway convention.^[106] A legal scholar addressed those questions, analyzing recent case law from State Conventions to conclude that limitations could be enforced through injunction against ratification or invalidation of an improper procedure.^[107]

At the same time, news media following the political proceedings, as well as legislators who opposed the process, were among the first to publicly warn of a “Pandora’s Box.”^[108] The same phrase is still used frequently today and it bears no more relation to modern scholarship than it did to the scholarship of a century ago.

This early period also gave rise to both versions of the minority, seemingly at once. Walter K. Tuller argued that applications should be counted together, whether they are for direct election of Senators or Anti-Polygamy.[109] Tuller had counted 28 applications and concluded that three more on any subject would trigger an unlimited convention.[110] James H. Dooley criticized Tuller and asserted instead the other version of the minority view, arguing that those applications that put their intended purpose into their resolved clause, rather than their whereas clauses were invalid.[111] The argument was repeated nearly verbatim fifteen years later during the fight to repeal prohibition when activists attempted to circumvent the process of getting two-thirds of the states and simply push for the use of the existing calls on other topics combined with just a handful of new states with calls specific to the prohibition issue. [112]

Anti-Saloon League General Counsel Wayne Wheeler was not concerned about the attempt to use the Convention process, so long as it was used properly.[113] Wheeler put forth several novel arguments that have since become standard, such as the power of Congress to judge the sufficiency of the applications or to supersede the States by proposing the Amendment themselves, as they did with the Seventeenth Amendment, voiding those applications.[114] Ultimately, though, with the exception of the preceding points, Wheeler largely agrees with prohibition opponents that a convention cannot be limited and spends the bulk of his paper fear-mongering about that prospect.[115] But when writing in a peer reviewed journal, even the General Counsel of the Anti-Saloon League must admit that, given there are already applications from two-thirds of the states, a new convention application cannot bring about an amendment on another topic. Activists in his movement were less careful in their popular media and were among the first to warn that a Constitutional Convention could lead to the “nullification of the bill of rights.”[116]

1. First Comprehensive Studies

Wisconsin, likely spurred on by the ant-prohibition movement, sent a new convention call to Congress listing 35 different states with calls on the books. ^[117] Congress responded by finally taking an active interest in its own role in the process.^[118] Congress published a study the following year by the New York State Bar Association concluding that, as the calls showed no consensus, the Congressional duty to call for a convention had not been triggered.^[119] Opponents of Prohibition would get their convention though, since Ratification Conventions were used for the 21st Amendment, as detailed above.[120]

Smaller journal articles, of course, continued to publish.[121] But in 1951, William Russell Pullen’s heavily cited political science dissertation provided a springboard for the wave of comprehensive institutional and governmental studies that would follow, all of which have endorsed the majority view.^[122] The following year, sparked by the contention that a convention to limit federal income, the House Judiciary Committee produced a report crediting Pullen’s study.^[123] The Committee, including Committee Counsel Cyril Brickfield, concluded that they could count calls together that favored different solutions, so long as they sought to address what the States saw as the same fundamental problem.^[124] However, by the time the 33rd application had passed its state legislature, 8 had been rescinded and 6 had other fatal defects.^[125]

Brickfield, while still on staff for the Committee, followed up with his own dissertation for Doctor of Juridical Science.^[126] Brickfield systematically went through the historical precedent and scholarly research, concluding that, among other things, the purpose clauses in the convention calls from the states create binding instructions on Congress that requires Congress to group calls based on subject matter and relay that purpose as their own binding limitations over the Convention. ^[127] Brickfield’s work was “of immeasurable aid to the Congress” and would help inform proposed convention regulation for the next 17 years until it was superseded by a report of the American Bar Association.

1. Partisan Convention Efforts: 1963-1992

“In the second half of the 20th century, two campaigns for Article V Conventions approached the constitutional threshold of applications from two-thirds of the states, 34 at present. Mounted largely between 1964 and 1983, they concerned politically sensitive issues: apportionment in state legislatures, which gained 33 state applications between 1964 and 1969, and an amendment requiring a balanced federal budget under most circumstances, which gained 32 applications between 1975 and 1983.”^[128] The apportionment effort was led by the conservative Republican Senate Minority Leader Everett Dirksen, along with the Council of State Governments. It led to a new wave of opposition from the Convention not unlike that seen in the preceding era. The second movement, led by the conservative National Taxpayers Union, sparked a far more organized and insidious backlash. It was this response that caused anti-convention talking points to enter mainstream consciousness with repercussions still felt today.

1. Partisan Efforts and Political Responses

In January of 1963, the Council of State Governments proposed that state legislatures immediately adopt three separate Article V Convention calls.^[129] The amendments “would (1) enable the State legislatures to propose constitutional amendments without action by Congress or any national convention, (2) remove all protections of the Constitution from the apportionment of representatives in State legislatures, and (3) enable the States, through a Court of the Union consisting of their 50 Chief Justices, to reverse any judgment of the Supreme Court upholding the exercise of any power or jurisdiction granted to the United States under the Constitution.”^[130]

The political backlash from progressives was immediate, as opponents claimed “the amendments were the result of a sinister conspiracy of Racists, Ruralists, Religionists and Right-Wing Reactionaries… [emphasizing]: (1) the relative obscurity of the participants; (2) their undisclosed financial backing; (3) the speed with which the proposal developed; (4) the secrecy of the movement; (5) the Machiavellian nature of the confederation made up of groups otherwise opposed on many policy matters; and (6) the use of the Council of State Governments as the principal base of operations.”^[131] Professor Charles Black criticized the proposal to alter Article V, saying that “Congress, in setting up the convention, could ensure that it be so representative as to be likely to express a national consensus;”^[132]

However, only the apportionment effort gained traction in State Houses, likely because legislators who had been elected in an unfairly apportioned district did not want to change that system. In response, instead of praising the Convention, Black attacked it, proclaiming his “distinct opinion, the result of years of reflection on the very subject, that [the pending Amendment Procedures Act] is, for many reasons, both unconstitutional and unwise.”.^[133] Black’s 1963 faculty note is his only scholarly work on the subject. The apportionment effort peaked in 1969 at 33 states, 1 shy of the requisite 34.^[134] But by the time Black wrote his letter two years later, the effort was already in decline with Idaho and Kansas rescinding.^[135] As the apportionment campaign wound down, the balanced budget amendment campaign was just beginning.

1. Organized Effort to Spread Misinformation

As the Council of State Governments efforts faded, the National Taxpayers’ Union rose on its coattails with a new convention effort, to balance the federal budget.^[136] “Major impetus to the convention drive came from the support announced in the second inaugural address of California Governor Edmund G. (Jerry) Brown, as the application total approached thirty and many state officials predicted thirty-four applications by the summer of 1979.”^[137]

Brown was seen as the main challenger to President Carter for the 1980 Democratic Party nomination for President until Senator Edward Kennedy entered the race. “Mr. Brown’s conversion to fiscal austerity was demonstrated by his 1979 public advocacy of a balanced-budget constitutional amendment — and a constitutional convention to achieve it. Constitutional amendments invariably send shivers through the hearts of liberal Democrats, and the mere mention of a constitutional convention can cause cardiac arrest in the same constituency.”^[138]

The reaction in Washington was frantic. In the office of Senator Birch Bayh, Chair of the Subcommittee on the Constitution in the Senate Judiciary Committee, one of a flurry of memos laid out six possible responses, among which were “2. Hold hearings with the aim of demonstrating the risks of calling a convention…. 5. Try to coordinate a behind-the-scenes campaign to quell state legislatures from urging Congress to call a convention. [and] 6. Scream.”^[139] Balanced Budget opponents took these suggestions in reverse order, beginning with the scream.

President Carter took interest in the idea as well, securing advice in January from Laurence Tribe at the same time his Attorney General’s Office was providing a brief but quality review of the scholarship.[140] By “March 1979, a coalition of labor, religious, business, and other interests met to organize a group called Citizens for the Constitution. This group, under the leadership of the Lieutenant Governor of Massachusetts, Thomas P. O’Neill III, helped coordinate the efforts of those persons who opposed efforts to convene a constitutional convention during 1979.”^[141] Immediately, the group began working closely with the White House.[142] In July, 1979, a meeting at Camp David secured both President Carter and Vice President Walter Mondale as part of the opposition.^[143] O’Neill’s group Citizens for the Constitution would later be renamed Citizens to Protect the Constitution.^[144] Linda Rogers-Kingsbury, Bayh’s chief of staff who worked on the 1979 memos, would take over as Executive Director of the organization.^[145] Former President Carter would join as a member of the Board of Advisors, alongside Laurence Tribe, Gerald Gunther and Justice Arthur Goldberg.^[146]

Citizens to Protect the Constitution learned an important lesson from the relatively ineffective opposition to the anti-apportionment convention. They recruited activist organizations from across the political spectrum.[147] Some groups saw some of their top executives formally sign on with the group, while others, like Common Cause on the left and the John Birch Society and Eagle Forum on the right copied their tactics and talking points, but if a formal relationship existed, no public information to verify it has been found. All of these organizations had one thing in common: they all opposed the balanced budget amendment on policy and saw opposition to the convention as a politically expedient way to achieve their goals.

1. Institutional Non-Partisan Studies

With the rise of the Balanced Budget effort right on the heels of apportionment, Congress gave more thought to Convention regulation after the apportionment campaign. In 1971, the American Bar Association formed a Special Constitutional Convention Study Committee.^[148] The ABA Report developed many of the arguments that had surfaced over the previous decades. These included the theoretical framework, such as the argument from equality;^[149] and the consensus argument.^[150] Also present are many of the practical checks and balances, such as the power of states to directly control delegates, as their agents,^[151] the power of Congress to assess the consensus of the states in the convention paired with a duty to call upon such a consensus,^[152] the ability to enforce that duty in court,^[153] the role of the people in choosing delegates elected specifically for the purpose,^[154] and the role of those delegates as a popular check on the politics in the state legislatures.^[155]

The Attorney General’s Office followed up just as the balanced budget campaign approached its peak. in the Carter administration requested a report on the convention method. Acting Assistant Attorney General Larry A. Hammond^[156] of the Office of Legal Counsel published his report at the request of Attorney General Griffen Bell.^[157] Benjamin Civiletti, who took over as President Carter’s Attorney General, requested a more substantial report from Assistant Attorney General John M. Harmon.^[158] Seven years later, Steven Markman was head of the Office of Legal Counsel this time under Republican leadership. Markman, like Brickfield before him, had been Legislative Council during key Senate hearings about convention regulations. ^[159] Of all the reports on the subject, Markman’s work had the clearest structure. He separated out and naming for the first time the three theoretical arguments outlined above. He then went through the separate checks and balances from the states, the congress, the courts and the delegates. He meticulously documented the arguments that had been used by opponents of the anti-apportionment amendment and the balanced budget amendment before reaching his own conclusions.^[160] In 1988, Russell Caplan, another Assistant Attorney General, published Constitutional Brinksmanship, a book that has been cited throughout this article, the most thorough narrative understanding of the precedent.^[161]

A mile from the Department of Justice, across the National Mall, the Congressional Research Service also studied the issue thoroughly. Legislative Attorney Meredith McCoy of the American Law Division of CRS, along with Analyst in American National Government David C. Huckabee, wrote the first comprehensive report for the Congressional Research Service and this time.^[162] The report listed 19 “unanswered questions” and then a “summary of some possible approaches to answering” them.^[163] In more recent years, Thomas Neale superseded the work of McCoy and Huckabee with three new Congressional Research Service reports.^[164] They address “Historical Perspectives,” most recently updates in 2012^[165], “Contemporary Issues,” most recently updated in 2016,^[166] and “Current Developments,” most recently updated in 2017.^[167]

1. Conclusion

During the 1990s and 2000s there were relatively few concerted Convention efforts and therefore relatively little written by scholars on the subject. One exception was the effort to obtain term limits for Congress. Linda Rogers-Kingsbury left Citizens to Protect the Constitution to join a political group seeking to counter that effort.^[168] Professor Ronald Rotunda, one of the most respected Constitutional Scholars of the last 50 years wrote an article defending the process for use in the Term Limits effort, saying:

“Critics of the convention method have argued that it is an untried process and, therefore, must be dangerous. They argue that a convention could ‘run away’ beyond its mandate, rewrite the entire Constitution, and even repeal the Bill of Rights. Such charges are not only unfounded, but they also show a strong distrust of democracy and a fear of the voter’s judgment. Although the claims that a convention will repeal the Bill of Rights, or other similar behavior, are groundless, their constant repetition gives people qualms. Thus, this issue deserves detailed analysis.”[169]

“Late in the first decade of the 21st century, interest in the Article V Convention revived among a range of advocacy groups. Originally linked to the Tea Party movement and organizations generally characterized as conservative and populist, the most widely advocated convention subjects included an amendment or amendments to require a balanced federal budget, restrict the federal debt, and set general limitations on the authority and activities of the federal government.”^[170]

Wolf-PAC began in October of 2011 as a non-partisan effort to use the Convention process to obtain an amendment to end the corrupting influence of money in politics and restore free and fair elections. I joined Wolf-PAC the day it was formed and have spent years studying the Convention process. I have testified at numerous hearings, met with many politicians, and presented on the issue before many organizations, including Hastings Law School where I spoke in anticipation of this article. Many of the same political organizations that formed part of the coalition with Citizens to Protect the Constitution now fight against Wolf-PAC, in spite of the fact that many of them claim to support our goals and all of the research is on our side.

Vocal, and sometimes disingenuous opposition dates back to the earliest days of American politics, as can be seen in Madison’s response to Hamilton’s support for the New York Circular Letter and Hamilton’s response to Madison’s fight against the Alien and Sedition Acts. The spread of misinformation became more organized with groups like the Anti-Saloon League fighting the effort to repeal Prohibition. But it wasn’t until Citizens to Protect the Constitution that professional political operatives pushed these talking points so effectively into the mainstream that they have entirely drowned out the unanimous agreement from the peer reviewed research.

While certainly, there are those who are intentionally lying about the Article V Convention process, it is a small portion of the opposition. For most, they have heard about how scary the Convention can be from sources they have come to trust. Those sources have heard it from sources they trusted and so on for decades. Even legal scholars who may publish excellent research on another area of law rarely are aware of the body of work on this subject. That is the purpose of this paper: to explain to the many smart and credible people have come to fear the convention where that perception comes from, in spite of the fact that every reliable scholarly source analyzing the Article V Convention for Proposing Amendments agrees that there is no risk a limited convention call could lead to an amendment on another issue.

^[1] This paper refers to conventions held under the Constitution by descriptive terminology according to their purpose, such as an “Amendatory Constitutional Convention” or a “Ratifying Constitutional Convention.” While some scholars, such as Lawrence Lessig, oppose the use of the term “Constitutional Convention” for this purpose, it is used frequently by a large majority of the scholarly work on the subject and is unavoidable in a paper that reviews the literature. Following the terminology popular through the early 20^th century, this paper distinguishes conventions intended to rewrite a constitution as “Revolutionary Constitutional Conventions.”

^[2] Michael Leechman & David Super, States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues (2017) (updated from 2014), https://www.cbpp.org/sites/default/files/atoms/files/7-16-14sfp.pdf.

^[3] Black’s Law Dictionary, Thompson Reuters (Bryan A. Garner, Ed. Deluxe 11th Ed. 2019); see, also, General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997).

[4] Current Developments, supra at 7.

^[5] General Electric, 522 U.S. at 146.

^[6] John Adams, Hafiz T.A. Khan, Robert Raeside & David I. White, Research methods for graduate business and social science students §4.8, at 61 (1st ed. 2007).

^[7] Hoober, infra.

[8] Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comment. 53, 56 (2012) [Hereinafter Rappaport 2012]. In an earlier work, Rappaport speculated, citing only to his own opinions, that limitations might fail and that a “nonconforming amendment might then be ratified by the states” in a scenario involving the simultaneous failure of all the protections over the process. Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them, 96 Va. L. Rev. 1509, 1528-31 (2010) [Hereinafter Rappaport 2010] (This is a tangential point on a paper on a related topic and no sources are cited for this notion. It differs significantly from the view he espoused two years later in his paper directly on the topic.) In the more recent paper, Rappaport cites this point from his 2010 paper as an example of the fear of the Convention process that has led to its disuse, rather than a realistic possibility.

[9] Forum, A Constitutional Convention: How Well Would it Work, AEI Forum 31 (1979), https://www.aei.org/research-products/book/a-constitutional-convention-how-well-would-it-work/ (Available as both video and transcript at the aforementioned URL. The video is missing the first half hour of the question and answer and answer period. When they conflict, quotations are from the video.).

[10] Rappaport 2012, supra at 56; Gerard N. Magliocca, State Calls for an Article V Convention: Mobilization and Interpretation, 2009 Cardozo Law Review De Novo 74, 75-6 (2009).

[11] But, see, First Report by the Commonwealth of Massachusetts Citizens Commission Concerning a Constitutional Amendment for Government of the People 29 (Jan. 9 2020), https://www.mass.gov/doc/citizens-commission-2019-report/download (In a counterexample, I provided the Commission with an earlier version of this research and Common Cause also testified in opposition. They concluded, “[a]fter significant review of a broad collection of materials, the Commission supports… a Massachusetts application for… a limited-purpose amendment convention” to end the corrupting influence of money in politics.).

[12] Sandra Benson Brantley, Md. AG Office Advice Letter 119 (2019) (on file with author).

[13] Vincent Pulignano, A Known Unknown: The Call For An Article V Convention, 67 Fla. L. Rev. Forum 151 (2016).

[14] E-mail from Vincent Pulignano to the author (Feb. 8 2019) (on file with author) (“I believe Ms. Brantley’s quote on of my article is most mischaracterized in her statement, right before quoting me, that reads ‘commenters continue to urge states not to call for such.’ In no way was I urging states to not call an Article V Convention. Instead I was pointing out potential risks, which can be resolved with careful planning and thinking.”).

^[15] Steven Markman, Department of Justice, Limited Constitutional Convention under Article V of the United States Constitution, Nat’l Crim. Just. Reference Sys. 115134, at 5 (1987); John M. Harmon, Department of Justice, Limitation of Power to Propose Amendments to the Constitution 3 Op. O.L.C. 390, 404 (1979) (Quoting James Madison); ABA Report, supra at 1, 11-7; Thomas Neale, Congressional Research Service, The Article V Convention to Propose Constitutional Amendments: Historical Perspectives for Congress R42592, at 8 (2012) (Hereinafter Historical Perspectives).

^[16] Markman, supra, at 28; Russel Caplan, Constitutional Brinksmanship 95-101 (1988); Selected Memorials of the Committee on the Judiciary pursuant to Rule XII of the House of Representatives of the United States, http://clerk.house.gov/legislative/memorials.aspx (showing applications that, even after accounting for rescission, are active from well in excess of thirty-four states as counted by the House of Representatives).

[17] Current Developments, supra at 20. See, also, ABA Report, supra at 11; Markman, supra, at 20; Larry A. Hammond, Department of Justice, Limitation of Power to Propose Amendments to the Constitution 3 Op. O.L.C. 16, 18 (1979); Steven A. Engel, Department of Justice, Ratification of the Equal Rights Amendment, 44 Op. O.L.C. Slip Op. (2020) (Applying the same principal to the ratification portion of Article V). The ERA opinion will be challenged in court though the question will likely be over fact specific issues surrounding the application of the consensus theory, such as whether deadlines must be in the text of the constitution or if they may be in a separate resolution by Congress and whether or not such deadlines may be extended by Congress. The underlying theory is widely accepted as valid.

[18] Timothy J. Dake, Far from Unworkable: The Fears, Facts, FAQs and Court Findings Relating to the Constitution’s Provision for an Article V Amendatory Convention 222 (2017).

[19] U.S. Const. art V.

[20] Rotunda, Safranek, An Essay on Term Limits and a Call for a Constitutional Convention, 80 Marq. L. Rev. 227, 237 (1996) [Hereinafter Rotunda Article]; ABA Report, supra at 16 (“Since Article V specifically and exclusively vests the state legislatures with the authority to apply for a convention, we can perceive no sound reason as to why they cannot invoke limitations in exercising that authority. At the state level, for example, it seems settled that the electorate may choose to delegate only a portion of its authority to a state constitutional convention and so limit it substantively.”). The enforcement of this limited grant of authority is discussed below.

[21] Robert G. Natelson, The Law of Article V, State Initiation of Constitutional Amendments, §3.4 Analyzing the Text of Article V (2018) [Hereinafter Natelson Treatise] (“[N]either Congress nor a convention for proposing amendments has power to alter the ratification procedure, as alarmists sometimes suggest. Any effort by the convention to do so would be ignored by other agencies of government, including the courts.”); Rotunda Article, supra at 229-31, 239.

^[22] Thomas Neale, Congressional Research Service, The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress R42589, at 7-8 (2016) (Hereinafter Contemporary Issues); See Rules of the One Hundred Sixteenth Congress. See, H.R. Res. 6, 116th Cong. § 103(b) (2019) (enacted) (In compliance with this provision of the Rules of the House of Representatives, the House Clerk has created the URL, http://clerk.house.gov/legislative/memorials.aspx); Thomas Neale, Congressional Research Service, The Article V Convention to Propose Constitutional Amendments: Current Developments R44435, at 3 (2017) (Hereinafter Current Developments); ABA Report, supra at 17.

^[23] Contemporary Issues, supra at 22-5; Staff of H. Comm. on the Judiciary, 103rd Cong., Rep., Is There a Constitutional Convention in America’s Future? 28-9 (Comm. Print 1993); S. Rep. No. 99-135, at 15-6 (1985) (“[A] consensus does emerge on the following important procedural issues: Congress may not establish Convention rules; nor may it establish itself as the final constitutional authority; it may determine the validity of State applications and designate the time and place of the Convention; and finally, it may provide for the Convention’s funding and method of delegate selection.”).

[24] Rotunda Article, supra at 239-41.

[25] Jeffery K. Mitchell, The Threat of a Second Constitutional Convention: Patrick Henry’s Lasting Legacy, 25 U. Rich. L. Rev. 519, 530 (1991); Staff of H. Comm. on the Judiciary, 103rd Cong., Rep., Is There a Constitutional Convention in America’s Future? 4, 12 (Comm. Print 1993) (finding Congress can pre-empt a Convention movement before the two-thirds threshold has been reached and arguably even afterward).

^[26] ABA Report, supra at 22-3. See Dake, supra at 238 (Equivocating on this argument). Note that the ABA Report bases its views on an analysis of Powell v. McCormack, 395 U.S. 486 (1969). The Powell decision was based on the Declaratory Judgement Act, 28 U.S.C. §2201, which became law in 1948, and allowed the Court to declare the existence of a right, even against Congress, even the Court cannot actually order Congress to actually take an action. The Court could, for example, recognize the right of the States to meet in Convention and order the States to act as if Congress had called the Convention, even if Congress refuses. Cases from before 1948 did not have this tool available as an option.

^[27] Caplan, supra at 132 (“The lower federal courts also have ruled on the validity of amendments to the Constitution, and held justiciable (subject to court review) other article V questions, including those pertaining to the convention route. State courts likewise have held judicially reviewable issues presented by the application stage, having long held justiciable questions relating to amendment of their respective state constitutions. One federal court decided that a provision of Louisiana’s constitution, a constitution that had been adopted by convention, went beyond the terms of the convention call and on that basis invalidated the provision.”).

^[28] Rappaport 2012, supra at 90; Markman, supra, note 6, at 5; ABA Report, pp. 20-21. In an earlier work, Rappaport speculated, citing only to his own opinions, that limitations might fail and that a “nonconforming amendment might then be ratified by the states” in a scenario involving the simultaneous failure of all the protections over the process. Rappaport 2010, supra at 1528-31 (This is a tangential point on a paper on a related topic and no sources are cited for this notion. It differs significantly from the view he espoused two years later in his paper directly on the topic.) In the more recent paper, Rappaport cites this point from his 2010 paper as an example of the fear of the Convention process that has led to its disuse, rather than as a realistic possibility.

[29] Rotunda Article, supra at 241-2. See, also, Contemporary Issues, supra at 21; ABA Report, supra at 33-7. Weber, infra (Markman, supra, at 40).

[30] U.S. Const. art V.

[31] Coleman v. Miller, 307 U.S. 433, 438 (1939) (finding state legislators have standing to enforce constitutional rights under Article V due to “a plain, direct and adequate interest in maintaining the effectiveness of their votes”); See, also, Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2659 (2015) (“[T]he Arizona Legislature, having lost authority to draw congressional districts, has standing to contest the constitutionality of [the] Proposition [that removed this authority].”).

[32] Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615 (2013) [Hereinafter Natelson Article] (Studying interstate conventions from the founding era as a precedent for the Article V Amendatory Convention.).

^[33] Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, at 129, 134-7, 145-72, 156, 160, 203-4, 209, 218-9, 221, 233, 235-6, 240, 314-5, 406, 410 (2010).

^[34] Note that this is distinct from the upcoming Supreme Court case concerning the power to instruct electors to the electoral college. Colorado Dep’t of State v. Baca, et al., No. 19-518, Vide 19-465 (Sup. Ct. 2020). The 10^th Circuit decision now on appeal turned largely on the definition of “elector”. Baca, et. al. v. Colorado Dep’t of State, No. 18-1173 at 87-90 (10th Cir. 2019), cert. granted, U.S. Jan. 17, 2020) (No. 19-518, Vide 19-465). The contemporary usage of the term “delegate” took for granted that “delegates” could be instructed even if “electors” could not. The Documentary History of the Ratification of the Constitution 28, at 66-71 (John P. Kaminski et al. eds., 2017) [Hereinafter 28 DHRC].

^[35] Maier, supra at 218-9 (“In the end, twenty-six of the roughly one hundred towns in New Hampshire not only decided the Constitution was seriously flawed but gave their delegates firm instructions to vote ‘no’ on ratification; only four instructed their delegates to vote ‘yes.’ ”). Only about half of the records survive. 28 DHRC, supra at 226. See 28 DHRC, supra 149-201. Based on contemporary accounts it is reasonable to presume the true number of instructed delegates was likely closer to 40. Email from John P. Kaminski, Editor of the DHRC to author (Aug. 28, 2019 16:29 EST) (on file with author). Letter from Jeremy Belknap to Ebenezer Hazard, Feb 17, 1788. Without those delegates whose constituents changed their instructions, “the Federalists calculated that they would lose the vote on ratification.” Maier, supra, at 220.

^[36] 28 DHRC, supra at 151-2; But, see, 28 DHRC, supra at 147, 202-4, 368-9 (Showing that anti-federalist Samuel Fowler made a spurious claim to have been properly chosen as delegate in place of Mr. Gerrish, which was rejected by the Convention.).

^[37] Ratification of the Twenty-First Amendment to the Constitution of the United States, State Convention Records and Laws 518 (Everett Somerville Brown ed. 1938) (Alabama, Arkansas, Oregon, and West Virginia all specifically required under the law that delegates vote in accordance with their instructions.).

^[38] Id.

[39] Dake, supra at 287-399 (Comprehensive list of relevant cases with analysis).

^[40] Raymond H. Moseley, The Limited Constitutional Convention, 21 Tenn. L. Rev. 867, 873 (1951).

^[41] Ford v Browning, 992 So.2d 132, 141 (Florida Sup. Ct. 2008).

[42] Hoober, infra.

[43] Paul J. Weber, The Constitutional Convention: A Safe Political Option, 3 J. L. & Politics 51, 65-66, 69 (1986).

[44] Michael Pierce, The Anti-Corruption Force of Article V’s Convention Clause, 13 Dartmouth L. J. 58, 71 (2015) (Internal quotations omitted from Sanford Levinson, Afterword: Do We Really Believe Any Longer in the Possibility of ‘Government from Reflection and Choice’? a Dour Meditation on Our Present Situation, 67 Md. L. Rev. 281 (2007)). Both this article and Professor Levinson support the use of the Article V Convention process specifically to end the corrupting influence of money in politics, in spite of this concern. Professor Levinson favors an open convention at which free and fair elections could be discussed, though as he confirmed in a phone call with me, he has published only speeches and a book aimed at the high school level on the subject and never anything peer reviewed. Hence, Professor Levinson’s work is not included in this literature review.

[45]  D.D. Guttenplan, Alexandria Ocasio-Cortez Ran—and Won—as a Movement Candidate, The Nation (June 27, 2018) (“Alexandria Ocasio-Cortez… waged a brilliant guerrilla campaign against the fourth-ranking Democrat in the house, Joseph Crowley, a 10-term incumbent who outspent her by more than 10-1 [by] [f]ocusing on economic justice… [and] inevitably draw[ing] comparisons with [Republican] House majority leader Eric Cantor’s June 2014 defeat by Tea Party candidate Dave Brat.”).

[46] In the interest of disclosure, this author is National Counsel for Wolf-PAC, a political organization seeking to use the Convention process exactly for this purpose.

[47] Walker Hanson, The States’ Power to Effectuate Constitutional Change: Is Congress Currently Required to Convene a National Convention for the Proposing of Amendments to the United States Constitution, 9 Geo. J.L. & Pub. Pol’y 245, 249-50 (2011); Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L. J. 677, 684 (1993); Bruce M. Van Sickle & Lynn M. Boughey, A Lawful and Peaceful Revolution: Article V and Congress’ Present Duty to Call a Convention for Proposing Amendments, 14 Hamline L. Rev. 1, 46-7 (1990); Thomas E. Brennan, A Return to Philadelphia, 1 Cooley L. Rev. 1 at 8 (1982); Orfield is a bit more clear in his earlier work, Procedure of the Federal Amending Power, 25 Ill. L. Rev. 418 (1930-1931); William Russell Pullen, The Application Clause of the Amending Provision of the Constitution (1951) (unpublished Ph.D dissertation, University of North Carolina) (on file with the Davis Library, University of North Carolina, Chapel Hill), https://archive.org/details/pullen. My thanks to his son and current copyright owner, Mark E. Pullen, for granting me permission to scan and release this source publicly on the internet for the first time. See also Bill Walker, The Article V Convention: Discussing the Reality Versus the Fantasy, 28 T. M. Cooley L. Rev. 21 (2011) (From Symposium: Renewing the Compact: How Article V Empowers the People of the States, 28 T. M. Cooley L. Rev. 1 (2011)). Walker is not a lawyer, but an advocate running the Friends of Article V website. As he and I have discussed many times, I have been very critical not only of his legal views but also of the accuracy of the information he presents. I generally recommend article5library.org run by Robert Biggerstaff as a source of primary documents instead. However, Walker has been cited by some prominent sources, so it should be noted that he falls broadly speaking into this same camp.

[48] Walter E. Dellinger, The Recurring Question of the “Limited” Constitutional Convention, 88 Yale L.J. 1623, 1624 (1979); Neal S. Manne, Good Intentions, New Inventions, and Article V Constitutional Conventions, 58 Tex. L. Rev. 131, 138 (1979); James H. Dooley, A National Constitutional Convention and its Possible Consequences 6(1911) (on file with University of Michigan Law School) (It is unclear whether or not this pamphlet was peer reviewed. No publication information was printed.).

[49] Janine Hansen, Nevada introduces Resolution Rescind all Art V’s including BBA (2017), http://eagleforum.org/national-issues/constitution/nevada-resolution-to-rescind-all-article-v.html (“SJR10… to Rescind all previous Article V applications in Nevada… was introduced by a handpicked Democrat.”); Testimony on Hawaii S.C.R. 131 (Mar. 19, 2019) p.20 (Testimony of Barbara Polk, former member of the board of Common Cause Hawaii, introducing a letter from Judi Caler, Article V Issues Director for the Eagle Forum of California.).

[50] See, e.g. Common Cause, The Dangerous Path: Big Money’s Plan to Shred the Constitution (2018) (updated from 2016 original), https://www.commoncause.org/wp-content/uploads/2018/03/dangerous-path-report-1.pdf (In 81 footnotes, many op-eds and quotes are cited, but not a single scholarly article.); Leechman & Super, supra (In 14 footnotes, not a single scholarly article is cited.).

[51] This is especially true of testimony at committee hearings, op-eds, phone calls, and mailers which have been particularly effective at spreading false information during political fights over various Article V Convention resolutions in various States.

[52] For example, numerous law schools have held symposia on the Article V Convention topic, often with an agenda in support or opposed to the idea. The level of scholarship at these symposia has varied widely, but they often do not receive a high level of peer review. See, e.g. Symposium, XXXIX Notre Dame Law. No. 6 (1964); Symposium, 1 Cooley L. Rev. No. 1 (1982); Symposium, 78  Tenn. L. Rev. No. 3 (2011); Symposium, Renewing the Compact: How Article V Empowers the People of the States, 28 T. M. Cooley L. Rev. 1 (2011) (Presented at Symposium, Renewing the Compact: How Article V Empowers the People of the States, 28 T. M. Cooley L. Rev. 1 (2011)); see, also, Legal Program, Amending the U.S. Constitution: The Risks of an Article V Convention of the States, Concordia School of Law (2019), https://www.acslaw.org/event/amending-the-u-s-constitution-the-risks-of-an-article-v-convention-of-the-states/. This paper was originally written due to an invitation to a symposium, but the author was assured it would receive the same thorough peer review as any other article.

[53] Testimony of Andrew Schlafly on SCR 254 and SCR 133 (Oct. 17, 2018), https://www.youtube.com/watch?v=UoBqbukzitI&t=2686s (Andrew Schlafly is Director of Phyllis Schlafly Eagles and son of Phyllis Schlafly.).

[54] Donald T. Critchlow, Phyllis Schlafly and Grassroots Conservatism: A Woman’s Crusade 285 (2005).

[55] E-mail from scholar to author (Sept 17, 2018 16:28 EST) (on file with author). This is a quote from one such scholar, an expert in a different area of law, who wrote an op-ed about the Article V Convention process. In a series of e-mails, he explained his research process and we discussed the flaws in his work and the political implications they would have. I will share the original e-mails upon request. However, there was nothing exceptional about his work or his process. I relay it here only to demonstrate why an op-ed should not be trusted as if it were professional literature. I do not with to single out a scholar who was kind enough to share his process with me and so his name has been left out of this paper. In this case, the legislature killed the resolution based primarily on his op-ed.

[56] The scholar asked a law librarian: “Could you help me with… tracking down a few law review articles (if they exist) that zero in on whether a United States Constitutional Convention can be limited to a single topic, versus deciding to propose changes outside the scope of the original mandate to that convention from the states. I poked around on SSRN and didn’t find anything, but you folks are better at that. (And if there isn’t anything, maybe I’ll have to write it.)” Email from scholar to law librarian (Aug. 15 2008 13:47 EST) (on file with author) (forwarded from scholar to author (Sept. 17, 2018 16:30 EST) The sources received consisted of a published letter to Congress, articles from one majority view scholar and one minority view scholar, and several op-eds.

^[57] Arthur J. Goldberg, Steer Clear of Constitutional Convention, Miami Herald (Sept. 14 1986) at 6C (“Former U.S. Supreme Court Justice Arthur J. Goldberg, a member of the advisory board of Citizens to Protect the Constitution, wrote this article for The Herald in response to an article by Arthur S. Miller, ‘Why not another constitutional convention?’ (Viewpoint, July 6.)”).

[58]  “My goodness, I didn’t expect to get anyone so excited about this relatively peaceful topic.” E-mail from scholar to author (Sept. 17, 2018 15:36 EST) (on file with author). I informed him that “it is inevitable that your op-ed will be used in [your] State Legislature as though it were clearly accurate and yet you did not do thorough research.” E-mail from author to scholar (Sept. 17, 2018 15:48 EST) (on file with author).

[59] Remy Tumin, The Op-Ed Pages, Explained, New York Times (Dec. 3 2017) (Quoting New York Times Op-Ed writer Gail Collins.)

[60] Leechman & Super, supra.

[61] Id.; A Constitutional Convention: How Well Would it Work?, supra. (“Just as it is possible that the Congress tomorrow might pass a law… eliminating Christmas, such things are possible, remotely possible. I have no fear that such extreme proposals would come out of a constitutional convention…. It is not much of a risk. Three-quarters of the states would have to ratify whatever came out of the convention; therefore, I don’t worry about it too much. I would also be willing to run that risk for issues primarily involving the structure of the federal government and a few other so-called single issues….” “The Congress, and its inaction is the whole reason for the call for the convention. [Op]position is essentially a throwing up of the hands…. [W]hat is the alternative? The alternative is continuing with a system that provides no means of obtaining a constitutional amendment, except through the kindness of the Congress, which has demonstrated that it will not propose amendments-no matter how generally desired-of certain types…. I have not proposed an open convention. Nobody in his right mind would propose it in preference to a convention limited to those provisions he wants changed…. In any case, I do not have any great fear of an open convention, since three-quarters of the states do have to ratify what comes out of it. The clucking that… others do about it is simply an intentional attempt to create panic and to make the whole idea sound unthinkable…” “I am the one here who is least terrified of a convention. We have come a long way. We have gotten over many problems. But the fact remains that a widespread and deep feeling of powerlessness in the country is apparent with respect to many issues…. The people do not feel that their wishes are observed. They are heard but they are not heeded, particularly at the federal level…. Part of the problem as I have noted is simply that the Congress has become professionalized; its members have a greater interest than ever before in remaining in office; and it is served by a bureaucracy and is much more subject to the power of individualized pressure groups than to the unorganized feelings of the majority of the citizens. This and other factors have created a real feeling of disenfranchisement that I think has a proper basis. The one remedy specifically provided for in the Constitution is the amendment process that bypasses the Congress. I would like to see that amendment process used just once. I do not much care what it is used for the first time, but using it once will exert an enormous influence on both the Congress and the Supreme Court…. I would not want a convention for some silly purpose, of course. But I think there are many serious purposes around, many matters that profoundly concern the American people and about which they do not now have a voice. I really want to see the process used responsibly on a serious issue so that the… alarm about the end of the world can be put to rest….”

[62] Joan Biskupic, Nothing Subtle About Scalia, the Combative Conservative, Wash. Post (1997).

[63] Justices Scalia and Ginsburg on the First Amendment and Freedom, C-SPAN (2014) (available at https://www.c-span.org/video/?c4766984/2014-scalia-quote-constitution-conventions-context). Other sources cite to a question Scalia answered at a 2015 meeting of the Federalist Society in New Jersey. I reached out to the Federalist Society who informed me the event was not recorded. There are a handful of scattered reports of Scalia’s commentary though. It is not sufficient to fully gleam his meaning, but I believe he was indicating that he would not want a new revolutionary convention of the kind seen recently in other nations and the comment had nothing to do with the process outlined by Article V.  David Gialanella, Scalia Visits Jersey, Slams Washington, 220 N. J. L. J. Issue 7, May 18, 2015, at 4; Kevin Mooney, Supreme Court Justice Scalia: Constitution, Not Bill of Rights, Makes Us Free, The Daily Signal (2015).

^[64] See, e.g., Arthur J. Goldberg, The Proposed Constitutional Convention, 11 Hastings Const. L.Q. 1 (1983); Email from Wendy Melissa Hernandez, Editor-in-Chief of Constitutional Quarterly, Vol. 47 to author (Nov. 18, 2019 17:46 EST) (on file with author) (The Goldberg “article’s categorization as ‘commentary’ suggests that it likely did not receive a close peer review because student ‘notes’ and scholarly ‘articles’ tend to be subject to that level of review…”); Laurence H. Tribe, Issues Raised by Requesting Congress to Call a Constitutional Convention to Propose a Balanced Budget Amendment, 10 Pac. L. J. 627 (1979) (“With Professor Tribe’s permission, we are reprinting verbatim the text of his prepared Statement before the Committee on Ways and Means of the California State Assembly on February 1, 1979.”); Gerald Gunther, The Convention Method of Amending the United States Constitution, 14 Ga. L. Rev. 1 (1979) (“The John A. Sibley Lecture in Law delivered at the University of Georgia School of Law on May 24, 1979, revised and annotated for publication.”); John A. Eidsmoe, A New Constitutional Convention? Critical Look at Questions Answered, and Not Answered, by Article Five of the United States Constitution, 3 USAFA J. of Legal Studies 35, 37 (1992) (The “Information for Contributors” notes that this source “is more a social science journal than a standard law review.”); E-mail from Shawn D. McKelvy, Lt. Col., USAF, Senior Military Faculty and Associate Professor of Law at US Air Force Academy to the author (Jan. 6 2020) (“As an undergraduate journal, I am not sure there would have been a more rigorous process that would have involved external reviews.”);  Meredith McCoy, Balanced Budget Amendment: Congress Versus States?, Federal Bar News (April 1979) (reporting news, rather than analyzing the law, as McCoy did in 1981 as an analyst for the Congressional Research Service supporting limits on the convention).

[65] Conference on the Constitutional Convention: Legal Panel, Harvard Law School (2011, October 6) (Lawrence Lessig, Host), https://www.wolf-pac.com/tribe (Url includes quotes from Tribe and a direct link to the full video of the conference.) Tribe also spoke about how the issues raised by Citizens United may be more appropriate for a Convention, unlike the Balanced Budget Amendment. He also said that, like Lawrence Lessig, he believes the necessary and proper clause authorized Congress to regulate the Convention process. Further, Tribe acknowledged that an Article V Convention should not be conflated with a Revolutionary Convention.

[66] Articles of Confederation, art. XIII; see 1 DHRC, supra at 93. There is no convention procedure in the Articles. Federal conventions at the time were merely powerless advisory committees.

[67] The Documentary History of the Ratification of the Constitution 1, at 178-9 (Merrill Jensen et al. eds., 1976) [Hereinafter 1 DHRC].

[68] The Documentary History of the Ratification of the Constitution, New Jersey Supplement, at 38-9 (Merrill Jensen et al. eds., 1978).

[69] Report of the Annapolis Convention; 1 DHRC, supra at 183 (“That the State of New Jersey had enlarged the object of their Appointment, empowering their Commissioners, ‘to consider how far an uniform system in their commercial regulations and other important matters, might be necessary to the common interest and permanent harmony of the several States,’ and to report such an Act on the subject, as when ratified by them ‘would enable the United States in Congress-Assembled, effectually to provide for the exigencies of the Union.’ ” (emphasis original)); Louis Ottenberg, A Fortunate Fiasco: The Annapolis Convention of 1786, 45 Am. Bar Ass’n J. 878 (Aug. 1959).

[70] 1 DHRC, supra at 175-90 (The Calling of the Constitutional Convention).

^[71] John M. Harmon, Department of Justice, Limitation of Power to Propose Amendments to the Constitution 3 Op. O.L.C. 390, 393 (1979).

[72] Natelson Article, supra at 677-8.

^[73] See, e.g., John M. Harmon, Department of Justice, Limitation of Power to Propose Amendments to the Constitution 3 Op. O.L.C. 390, 393 (1979).

^[74] Maier, supra, at 342.

^[75] Dake, supra at 183.

^[76] The Documentary History of the Ratification of the Constitution 23, at 2336 (John P. Kaminski et al. eds., 2009) [Hereinafter 23 DHRC]. The New York Circular Letter calls for a “general convention” which, could have meant either “general attendance” or “general purpose” at the time, but the context indicates that “general attendance” was the intended meaning. Email from John P. Kaminski, Editor of the DHRC to author (July 19, 2017 07:48 EST) (on file with author) (“[T]he New York Circular Letter was an attempt to assure Federalists nationwide that Antifederalists were not bent on throwing out the entire Constitution in a general convention.”) While substantial, the list of amendments proposed was not without limitation and so the convention proposed was not for a “general purpose.” Although no scholar doubts that convention calls for a general purpose are allowed and there have been a few in American history, in this case, the “general attendance” interpretation is a better reading, contrary to the way most have described it.

^[77] 23 DHRC, supra at 2504.

[78] John Jay has been quoted calling a convention an “extravagant risk.” Citizens Against an Article V Convention (Eagle Forum) Brilliant Men (2018), http://caavc.net/wp-content/uploads/2018/04/Brilliant-men-r1-2.pdf; See also David Super & McKay Cunningham, Concordia Law Panel Will Discuss Amending The Constitution With A “Con-Con”, Boise State Public Radio (Jun 19, 2019); but, see Samuel Fieldman & Michael Monetta, Con-Con Part Two, Boise State Public Radio (Aug 8, 2019) (rebutting the previous interview). However, this quote was from a political pamphlet designed to scare people away from the notion of calling for a new convention instead of ratifying, not to scare people away from using the procedure in the Constitution once it had been ratified. The Documentary History of the Ratification of the Constitution 17, at 103 (John P. Kaminski et al. eds., 2017) (Analysis of “A Citizen of New York”).

^[79] The Records of the Convention of 1787 2, at 557-8 (Mad Farrand ed. 1911).

^[80] Id. at 558.

^[81] Id. at 630.

^[82] Id. (“The motion of Mr. Govr Morris and Mr. Gerry was agreed to nem: con.”).

^[83] See letters from James Madison to Thomas Jefferson (Aug. 10, 1788, Aug. 23, 1788, & Sep. 21, 1788), to Edmund Pendleton (Oct. 20, 1788), to George Lee Turberville (Nov. 2, 1788), to Henry Lee (Nov. 30, 1788), to Thomas Jefferson (Dec. 8, 1788), to Philip Mazzei (Dec. 10, 1788), to George Eve (Jan. 2, 1789) and to Thomas Mann Randolph (Jan. 13, 1789) (on file with Founders Online), https://founders.archives.gov.

^[84] 23 DHRC, supra at 2508-9.

^[85] Dake, supra at 184; see, Letter from Alexander Hamilton, to Theodore Sedgewick (Nov. 9, 1788) (on file at founders.archives.gov), https://founders.archives.gov/documents/Hamilton/01-05-02-0047 (“The rage for amendments is in my opinion rather to be parried by address than encountered with open force.”).

[86] James Madison, The Report of 1800 (Jan. 7, 1800) (on file at Founders Online, http://founders.archives.gov) (clarifying Madison, Virginia Resolutions, (Dec. 21 1798) (on file at Founders Online, http://founders.archives.gov). Madison took an all of the above approach, calling for a convention, for an amendment proposed by Congress, for individuals to speak out publicly, and for the election of Thomas Jefferson as President, whose victory ultimately ended the battle. Kurt T. Lash, James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment, 74 Geo. Wash. L. Rev. 165, 182 (2006); Caplan, supra at 41-2.

[87] Caplan, supra at. 46-8.

[88] James Madison, The Right of a State to Nullify an Act of Congress, 31 North Am. Rev. 537, 542 (1830) (“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.”); Caplan, supra at 48-50.

[89] Caplan, supra at 50-2.

^[90] Joseph Story, Commentaries on the Constitution of the United States with a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution, Vol. III §1825 at 690 (1833).

^[91] St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, Book 1, Part 1, at App. 371-2 (1803). Tucker’s son’s 1843 treatise pioneered the “equality argument.” Henry St. George Tucker, Lectures on Constitutional Law for the Use of the Law Class at the University of Virginia 184-5 (1843).

^[92] John Alexander Jameson, The Constitutional Convention: History, Powers, and Modes of Proceeding §§376-82 at 350-5 (1st ed. 1867).

^[93] Id. at §364 at 342-3. In the context of State Constitutional Conventions, Jameson found limitations and instructions unwise, even if lawful, because voters lacked the practical ability to assert such instructions or limitations and he viewed it as improper, though lawful, for the state legislature to do so. He did not, however, consider the distinct circumstances that make it far more practical in a Federal Convention for the State Legislature to create limitations through its application process and create instructions by its authority as a representative of the sovereign.

^[94] John Alexander Jameson, The Constitutional Convention: History, Powers, and Modes of Proceeding §§375 at 623 (4th ed. 1887) (The equivalent section in the first edition argued both sides, but by his final version of the treatise, Jameson had become certain of the nature of the comparison between State and Federal Amendment Conventions.).

^[95] See, e.g., Roger Sherman Hoar, Constitutional Conventions, Their Nature, Powers, and Limitations, (1917) (updating and partially criticizing Jameson’s then 30 year old text but not discussing the implications for an Article V Amendatory Convention.).

[96] John A. Hoober, Popular Prejudice and Constitutional Amendatory Conventions, 1 Yale L. J. 207, 208, 213-4 (1892) (dramatic reading courtesy of New Jersey voice actor David Liebowitz is available at http://bit.ly/2HbAl3p) (Hoober was writing about State Conventions, but his arguments are just as relevant to the Article V Amendatory Convention.)

^[97] Ronald Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure §10(b)(iv) (2012) [Hereinafter Rotunda Treatise].

^[98] Ch. 69, 123rd Gen. Assemb. (Ne. 1893).

^[99] Dake, supra at 189.

^[100] A.C.R 8 & A.J.C.R. 2 . 51, 23rd Gen. Assemb. (NV 1907); It appears that rather than consolidate the House and Senate resolutions, the House passed the Senate version and the Senate passed the House version, creating two separate applications. During that decade, Nevada passed another three convention calls for Direct Election of Senators. Robert Biggerstaff, The Article V Library (http://article5library.org/apptable_by_subject.php#i_Direct%20election%20of%20Senators) This is the most comprehensive and accurate list available anywhere. However, it is not perfect. For example, it only lists one of the 1907 Convention calls from Nevada.

^[101] Rotunda Treatise, supra at §10(b)(iv).

^[102] Caplan, supra at 41-2. Rotunda Treatise, supra at §10(b)(iv).

^[103] Caplan, supra at 65.

^[104] S.C.R. 2, 7th Gen. Assemb. (Mt. 1901); Biographical Directory of the U.S. Congress, Joseph Moore Dixon, Congress.gov, https://bioguideretro.congress.gov/Home/MemberDetails?memIndex=M001129 (last visited Feb 13, 2020) (“State house of representatives 1900… [until] 1903”); Biographical Directory of the U.S. Congress, Henry Lee Myers, Congress.gov, https://bioguideretro.congress.gov/Home/MemberDetails?memIndex=M001129 (last visited Feb 13, 2020) (“State senate 1899-1903”).

^[105] Walter Clark, The Next Constitutional Convention of the United States, 16 Yale L.J. 65 (1906).

^[106] Robert J. Sprague, Shall We Have a Federal Convention, and What Shall It Do?, 3 Maine L. Rev. 115 (1910).

^[107] The Powers of Constitutional Conventions, 29 Harv. L. Rev. 528, 530 (1916).

^[108] Henry Litchfield West, Shall United States Senators Be Elected by the People, XLII The Form 291, 298 (1909) (“The conservatives shrink from changing the Constitution and insist that a convention, called for the purpose of securing a new method of electing United States Senators, would open Pandora’s box. This is, unfortunately true. It is the only reason yet advanced which ought to have any weight with those upon whom the responsibility of calling that convention may devolve. A thousand proposed amendments would threaten the symmetry and dignity of our present national charter and incalculable damage might be done. Taken by itself, a proposition to elect United States Senators by the people is entitled to serious consideration. If it is to succeed, however, at the cost of a Constitutional Convention, which is the method suggested by the legislatures of thirty States, it would be better to let well enough alone.”); Caplan, supra at 64.

[109] Walter K. Tuller, A Convention to Amend the Constitution, Why Needed, How it May Be Obtained, 193 North Am. Rev. 369, 373 (1911) (Not published in a peer reviewed legal journal, but in the same literary magazine where James Madison published his 1830 letter on nullification.).

[110] Id. at 371 (“There are now forty-six States in the Union. Two-thirds of that number is thirty and two-thirds, or thirty-one ap plications required before Congress is obliged to call a constitutional convention. The fact about to be stated may not be generally known, but it is a fact, nevertheless; the Legislatures of twenty-eight States have already formally applied to Congress to call such a convention… In other words, but three more such applications are re quired to impose upon Congress the duty of calling a constitutional convention.”). Tuller was apparently unaware that eight other states already had passed convention calls, four of them in just the five previous years. Had he known, he would have concluded that the call from Vermont the following year would have been redundant.

[111] Dooley, supra 6.

[112] Wayne B. Wheeler, Is a Constitutional Convention Impending, 21 Ill. L. Rev. 782, 782 (1926-1927) (“There are now forty-eight States in the Union. Two-thirds of that number is thirty-one and a third, or thirty-two applications are required before Congress is obliged to call a constitutional convention. The fact about to be stated may not be generally known, but it is a fact nevertheless-the Legislatures of twenty-eight States already have formally applied to Congress to call such a convention… In other words, but four more such applications are required to impose on Congress the duty of calling a constitutional convention.”)(Quoting Letter from Louis A Cuvallier, State Assemblyman from New York, to William E. Borah, U.S. Senator from Idaho (June 10, 1926)(reprinted in article).). The letter quoted is nearly identical to Tuller, but without attribution. Neither Tuller’s magazine article nor Cuvallier’s letter were subjected to peer review.

[113] Id. at 788 (Noting that two-thirds of the states had already applied for a convention, making the application specific to repeal of prohibition redundant on the view of its proponents.)

[114] Id. at 790.

[115] Id. at 791-803; but, see, Orfield, supra (agreeing almost entirely with Wheeler, but without political agenda and hence without fear mongering).

[116] Marshall Opposes United States Constitutional Amendment, Jewish Daily Bulletin 3 (Mar. 8, 1927) (on file with Jewish Telegraphic Agency Archive), http://pdfs.jta.org/1927/1927-03-08_711.pdf?_ga=2.127409613.1992747678.1581440995-837211357.1581440995.

^[117] J.R. 51, 1929-1930 Gen. Assemb. (WI. 1929); see, J.R. 41, 1931-1932 Gen. Assemb. (WI. 1931) (Wisconsin proposed a call for repeal of prohibition the following year.). Inspiration by the 1929 Wisconsin resolution, Wolf-PAC uses a “daisy chain,” including a list other convention calls that have passed calling for free and fair elections along with each new convention call introduced.

^[118] Ralph R. Martig, Amending the Constitution Article Five: The Keystone of the Arch, 35 Mich. L. Rev. 1253, 1269 (1937).

^[119] Henry W. Taft, et. al., Report of the Committee of Five to Look into and Report on the Several Proposals Pending in Congress to Amend the Federal Constitution, To the New York Bar Association (Dec. 31, 1930) (Printed at 74 Cong. Rec. 2,924-6 (1931)).

[120] Rotunda Article, supra at 242-3 (“The absence of a clear rule in Article V [on how ratifying conventions are run] did not lead to chaos. On the contrary, states simply proceeded according to the provisions and procedures in the state constitutions. Despite the novelty of the state convention method, a clear demonstration has been given of what can be accomplished, even in legislation of a novel character, when the objective is definite and the public insistent.”). See, e.g. Ethan P. Davis, Liquor Laws and Constitutional Conventions: A Legal History of the Twenty-first Amendment, Student Scholarship Papers 65, at 21-22 (2008).

[121] Proposing Amendments to the United States Constitution by Convention, 70 Harv. L. Rev. 1041 (1957) (advocating that a convention should not be called until there is sufficient consensus from the states on the topic and this consensus would lead to delegates who would come together for that sole purpose, even if Congress and the States can’t control what happens during their deliberation).

^[122] William Russell Pullen, The Application Clause of the Amending Provision of the Constitution (1951) (unpublished Ph.D dissertation, University of North Carolina) (on file with the Davis Library, University of North Carolina, Chapel Hill), https://archive.org/details/pullen. Pullen’s expertise was in political science, not law. Pullen subscribed to a minority view similar to that of Orfield and Wheeler. However, his comprehensive compilation of primary sources made the work of legal scholars who took a different view possible.

^[123] Staff of H. Comm. on the Judiciary, 82d Cong., Problems Relating to State Applications for a Convention to Propose Constitutional Limitations on Federal Tax Rates 2 (Comm. Print 1952).

^[124] Id. at 11 (“With due respect to [Orfield and Pullen]…, to transform every petition asking for a specific remedial amendment into a request for a general convention by classifying it with every other application asking for constitutional change would constitute a strained interpretation of Article V wholly at variance with the present needs and desires of the States.”).

^[125] Id. at 18.

^[126] Staff of S. Comm. on the Judiciary, 85th Cong., Problems Relating to a Federal Convention (Comm. Print 1957) (Printing Ph.D Dissertation of Cyril Brickfield Committee Counsel) (Hereinafter Brickfield Dissertation); Staff of S. Comm. on the Judiciary, 87th Cong., State Applications Asking Congress to Call a Federal Constitutional Convention (Comm. Print 1961) (Committee printed updated research by Cyril Brickfield, Committee Counsel, but did not adopt his views as their own).

^[127] Brickfield Dissertation, supra at 25-6.

^[128] Current Developments, supra at 3.

^[129] Paul Oberst, Genesis of the Three States-Rights Amendments of 1963, 39 Notre Dame L. Rev. 644, 650 (1963).

^[130] 109 Cong. Rec. 16,392 (1963).

^[131] Oberst, supra, at 647-8.

^[132] Charles Black, Jr., Amendment of Article V, a Threatened Disaster, 72 Yale L.J. 957, 959 (1963); Charles Black Jr., Proposed Constitutional Amendments: They Would Return Us to Confederacy, 49 A.B.A. J. 637 (1963); See also, William F. Swindler, Current Challenge to Federalism: The Confederating Proposals, 52 Georgetown L. J. 1 (1963); George McGovern, Confederation vs. Union, 9 South Dakota Law Review 1 (1964).

^[133] Charles Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 Yale L. J. 189, 190 (1972). For many years, Black’s letter was among the most frequently cited source by Convention opponents. As the letter was reprinted in the Yale Law Journal, it can be easily mistaken for scholarship, rather than lobbying.

^[134] Robert Biggerstaff, Article V Library, http://article5library.org/apptable_by_subject.php#i_Apportionment.

^[135] S.J.M. 109, 41st Gen. Assemb. (Id. 1971); H.C.R. 1081, 1969-1970 Gen. Assemb. (KS. 1929).

^[136] Historical Perspectives, supra, at 12(“Four states joined the drive in 1975, followed by eight in 1976, five in 1977, five in 1978, and eight more in May 1979, for a total of 30 applications, four fewer than the constitutional threshold.”); Caplan, supra at 79 (The effort originated with State Representative David Halbrook of Mississippi who helped organize efforts in other Southern States and State Senator James Clerk of Maryland who recruited help from the National Taxpayers Union, who, in turn, took the lead on the project.).

^[137] Caplan, supra at 41-2.

^[138] Jerry Brown and 1980, Wash. Examiner (Apr. 9, 1980).

^[139] Staff of Senator Birch Bayh, Constitutional Convention to Balance the Budget (Jan. 16, 1979) (on file at the National Archives), https://archive.org/details/citizenstoprotecttheconstitution.

[140] Tribe, supra at note at 627.

^[141] Meredith McCoy & David C. Huckabee, Congressional Research Service, Constitutional Conventions: Political and Legal Issues, The Unanswered Questions, Rep. No. 81-135 GOV/A (1981) (on file at the National Archives), https://archive.org/details/citizenstoprotecttheconstitution. Thank you to the Sara Waitz in the office of the National Archives and Records Administration, for help tracking down this particularly elusive source.

[142] Warren Weaver Jr., President Fighting Budget Convention, N.Y. Times, Mar. 1, 1979, at A1.

^[143] Dake, supra at 466.

^[144] James V. Saturno & Megan S. Lynch, Congressional Research Service, A Balanced Budget Constitutional Amendment: Background and Congressional Options R41907, at 20 (2019).

^[145] Citizens to Protect the Constitution, A Federal Constitutional Convention, Problems & Precedents, A Comprehensive Study 1 (1984) (unpublished pamphlet) (on file with the National Archives), https://archive.org/details/citizenstoprotecttheconstitution.

^[146] Id. It should be noted that a formal relationship does not necessarily indicate a close relationship. In a private conversation, Professor Laurence Tribe told me he does not remember the group, despite being listed on their board of advisors and their panel of legal scholars.

[147] John A. Eidsmoe, A New Constitutional Convention? Critical Look at Questions Answered, and Not Answered, by Article Five of the United States Constitution, 3 USAFA J. of Legal Studies 35, 37 (1992) (“Linda Rogers-Kingsbury has told this author that at the time she formed this coalition the liberal organizations seemed most willing to join, but that the coalition itself is neither conservative nor liberal and that she herself does not see the issue as primarily liberal or conservative.”).

^[148] Constitutional Convention Procedures, Hearing before the Subcomm. on Const. of S. Comm on the Judiciary, 96th Cong. 50 (1979) (Testimony of John D. Feerick) (“consisted of two Federal judges,… [three] law school deans [including John Feerick of Fordham University who presented the report to Congress],… two former presidents of State constitutional conventions,… a former Deputy Attorney General of the United States, [and] the assistance of a judge… in the District of Columbia…. The committee met for 2 years, met often, to study the questions associated with this particular article of the Constitution. [They] were aided in [their] study by a dozen law students from six or seven law schools. Those law school students put together several volumes of work papers on these issues before the committee.”); Reached for comment, Barbara Prager, then a law student who authored Appendix B, Part Two, “A History of Applications,” had no recollection of the work. It is an excellent summary of the reports by Pullen and Brickfield earlier. But for Prager, now a successful lawyer in Florida, it was just one of many assignments during her summer internship that she approached with no political predilections.

^[149] Am. Bar Ass’n, Special Constitutional Convention Study Committee, Amendment of the Constitution by the Convention Method Under Article V 1, 11-7 (1974) (Hereinafter ABA Report). I want to thank Dean John Feerick for speaking with me at length concerning this report. Dean Feerick strictly avoids politics and would not comment on my work with Wolf-PAC, but he agreed to speak generally, partially because I had graduated from Fordham University Law School where he had been Dean for 20 years. Dean Feerick reiterated the arguments in the Report and in his public testimony, explained that the founders would have been “surprised” by the notion that a convention cannot be limited, and spoke with pride about detailed scholarship without politics that lead to unanimity on all but one minor point among the esteemed Committee members.

^[150] ABA Report, supra at 11.

^[151] Id. at 16.

^[152] Id. at 17.

^[153] Id. at 22-3.

^[154] Id.

^[155] Id. at 20-1.

^[156] Reached for comment, Mr. Hammond does not remember his report, as it was just one of many topics he researched in his role. Like Ms. Prager, he approached the effort without politics, dutifully explaining the research in his short report. Mr. Hammond insisted on abiding by the office policy of the time and declined to discuss his opinion, letting the work speak for itself.

^[157] Larry A. Hammond, Department of Justice, Limitation of Power to Propose Amendments to the Constitution 3 Op. O.L.C. 16 (1979) (“[O]nce it has been determined that two-thirds of the States have submitted valid applications, Congress is generally thought to be obliged to call a convention.” “[A]pplications relating to different matters should not be counted together…. ” “Congress may limit the convention’s deliberations.” “[I]ssues as the imposition of limits on the convention’s deliberations and the President’s involvement in the process of amendment by convention may well be reviewable in the courts.”).

^[158] John M. Harmon, Department of Justice, Limitation of Power to Propose Amendments to the Constitution 3 Op. O.L.C. 390, 410 (1979) (“As we have suggested in the preceding discussion, the meaning of the Convention Clause is simple and clear. A constitutional convention convenes, if at all, to make proposals responsive to a substantive consensus among the legislatures of the States. The consensus may be general or narrow. It may call for a general reexamination of the Constitution, or it may be a relatively specific agreement among the legislatures about the desirability of a particular change. In any case, the function of the two-thirds requirement in the application process is to ensure that no convention will be convened and no proposal made unless there is an agreement among an extraordinary majority of the governments of the States that would justify a responsive proposal and the ratification effort. As Hamilton put it, it takes two-thirds to set the measure on foot. That being so, it is unimportant that the delegates to a constitutional convention may have a moral or legal duty to respect the tenor of the application and call that brought them there. They may well have such a duty or duties, but the important point is that they have, in our view, no power to issue ratifiable proposals except to the extent that they honor their commission. They have no more power to go beyond the consensus that summoned them to convention than does Congress to propose amendments that are not responsive to a consensus among two-thirds of its Members”) Reached for comment, Mr. Harmon recalled his report, but would not discuss either the contents or the circumstances surrounding its creation due to the then-existing office policy of allowing the report to speak for itself.

^[159] Reached for comment, now Justice Markman of the Michigan State Supreme Court (formerly Chief Justice), explained this as his motivation for writing the report. First, he confirmed my presumption that he was, indeed, the nearly sole author even though his name does not appear on the report itself. He also confirmed that although controversial Attorney General Edwin Meese signed the cover letter, he had very little to do with the publication. Justice Markman, however, would not comment on the content of the report because, as a judge, he refrains from commentary on matters that may come before his Court. See Letter from Steven J. Markman to Melvin R. Laid, (Aug. 29, 1988) (on file with the Gerald R. Ford Presidential Library & Museum), https://archive.org/details/citizenstoprotecttheconstitution.

^[160] Markman, supra, at i (“The paper concludes that Article V permits the states to apply for, and the Congress to call, a constitutional convention for limited purposes, and that a variety of practical means to enforce such limitations are available. The language and structure of Article V, as well as the history of its drafting, support this conclusion because the two methods of constitutional amendment, Congressional initiative and the state-called convention, are treated by Article V as equally available procedural alternatives…. After establishing that Article V does permit limited constitutional conventions, the paper examines the procedural strictures available to ensure that such limitations are enforced.”)

^[161] Caplan, supra.

^[162] McCoy, supra.

^[163] Id.

^[164] Mr. Neale informed Jack Brindisi in the office of Congresswoman Lori Trahan that he was not permitted to provide the report because his work contained all the same information, but was more current. I had to obtain the report from archival records of Congress instead.

^[165] Historical Perspectives, supra (“To sum up the available record indicating the founders’ original intent, it appears that they crafted Article V very much in the spirit of checks and balances, and separation of powers, that permeates the Constitution. During the convention, they agreed that a second mode of amendment was needed to balance the grant of amendatory power to Congress. This method, clearly identified in Article V as co-equal to congressional proposal, empowers the people, acting through their state legislatures, to summon a convention that would have equal authority to propose an amendment or amendments, which are then proposed to the states for ratification.”).

^[166] Contemporary Issues, supra (The report points Congress to “a range of information resources […], including the founders’ intentions and actions in establishing the Article V Convention alternative, scholarly works cited in this report, historical examples and precedents, and the body of relevant hearings, reports, and bills produced by Congress.”).

^[167] Id.

^[168] Linda Rogers-Kingsbury, Letter of Resignation to Citizens to Protect the Constitution (Feb 20, 1991) (on file with the National Archives), https://archive.org/details/citizenstoprotecttheconstitution. As far as I have been able to find, Citizens to Protect the Constitution seems to have dissolved after the departure of Ms. Rogers-Kingsbury. The new group she joined, under Melvin R. Laird, does not appear to have had as significant an impact on the public discourse.

[169] Rotunda Article, supra at 230.

^[170] Current Developments, supra at 3.