6 myths about an Article V convention

Note: Staff Counsel Rita M. Dunaway contributed to this column.

When 2015's legislative cycle begins, at least 30 states will consider applying for an amendment-proposing convention under Article V of the U.S. Constitution.

Some conservatives fear the Article V convention process because of a handful of popular myths.

Myth No. 1: An Article V convention is a "Constitutional Convention" or "Con-Con."

Article V provides a procedure for states to meet and propose specific amendments to our existing Constitution – not a means of scrapping it and starting over. In fact, the Constitution's drafters specifically declined to provide for another general constitutional convention.

Myth No. 2: An Article V convention cannot be limited to specified objectives.

There is no basis for this claim that the states cannot define the scope of their amendment-proposing convention.

The convention is triggered when two-thirds of the state legislatures (34) apply for it. But if one state applies for a convention to propose a balanced budget amendment and a second state wants campaign finance reform, the two applications don't get counted in the same list. This is why there has not yet been an Article V convention, despite the filing of over 400 applications.

The specified topic for the convention does matter.

Myth No. 3: Under Article V, Congress "calls" the convention, so it gets to select the convention delegates.

It's clear from the records of the 1787 Convention that the very purpose of the convention mechanism in Article V was to bypass Congress. George Mason objected to an earlier version that gave Congress the sole power to propose amendments.

In light of this objective, it would have been illogical for the founders to have chosen a process Congress would control. And they didn't. They knew that when states meet in a convention (as they did regularly in those days), each state selects and instructs its own delegates.

Virginia "called" the 1787 Convention, but it certainly did not purport to select the delegates for other participating states.

Myth No. 4: Congress sets the rules for the convention.

There is no legal or historical basis for this claim, either. He who calls the interstate convention does not rule the convention. (If it were otherwise, interstate conventions would be sparsely attended.)

The rules are adopted by a majority vote of the participating states, with each state exercising one vote. This is the only precedent for American interstate conventions, the only interpretation consistent with the drafters' purpose and, because this default was not explicitly changed by the text of Article V, it is the presumptive rule.

Myth No. 5: An Article V convention could "run away."

It's difficult to affirmatively disprove any hypothetical future event, but there is zero precedent for a "runaway convention," and there are ample legal protections to prevent it.

First, the 1787 Constitutional Convention was not a "runaway." Some people mistakenly believe the Confederation Congress called the Convention solely to revise the Articles of Confederation. But the fact is that Congress didn't "call" the Convention at all – Virginia did. The participating states instructed their delegates to "render the federal constitution adequate" to the needs of the Union, and that is exactly what they did.

Second, at an Article V convention, any amendment proposals that go beyond the scope of the 34 state applications that trigger the convention would be legally invalid. And the state's delegates have no legal authority beyond that specified in their instructions.

Finally, proposed amendments must be ratified by three-fourths of the states (38). This is an enormous obstacle even for good amendments, and it protects us from any sinister schemes of hypothetical rogue delegates.

Myth No. 6: Federal officials ignore the Constitution now, so amending it won't help.

It certainly seems as if the feds "ignore" the Constitution at times, but the truth is more complicated.

The truth is that federal officials apply the Constitution as interpreted by the Supreme Court, which has long forsaken an originalist interpretation of the text.

For instance, the federal mandate that we buy certain health insurance policies isn't a result of the feds "ignoring" the Constitution. It is a result of court rulings that there is no constitutional limitation on Congress' power to tax and spend under the General Welfare Clause.

This interpretation is not true to that clause's original meaning. But with precedents now firmly in place, the only way to recover the original meaning is through an amendment that says something like, "Congress may not tax and spend for any purpose that is within the jurisdiction of the States."

An Article V convention could propose amendments that reverse the Supreme Court's erroneous interpretations of the Constitution and reinstate its original meaning on matters such as this.

A thorough understanding of constitutional history dissolves modern myths about Article V. It should also dissolve our excuses for neglecting the one constitutional emergency brake that can stop a runaway federal government.

Michael Farris, head of the Convention of States Project, is a constitutional litigator and the founder of Home School Legal Defense Association and Patrick Henry College. Rita Dunaway is an experienced constitutional lawyer serving as staff counsel for the Convention of States Project.