Mr. Hirschhorn has asked me to respond to your thoughtful letter of February 3, 2007 regarding his article “Healthy Political Faith” and the concerns you have expressed over Congress calling an Article V convention. As I know you to be a man of integrity I know you nor anyone in your organization would purposely base such opposition on half-truths, myths or outright lies. Men of integrity and honor do not do that. We at FOAVC believe in accuracy and documentation to support our assertions and I can assure you Mr. Hirschhorn can do so in regards to every statement made in his article if he were so challenged. I am sure you hold your statements in no less a high regard of accuracy.
Therefore I assume your statement in your letter was an inadvertent, unintentional error saying the 1787 Convention was a “runaway.” It is a popular myth that the 1787 Convention acted on its own to create the Constitution and its actions were not authorized by anyone. Allow me to quote directly from the legislation passed by Congress on February 21, 1787 regarding the call of that convention:
“Whereas there is provision in the Articles of Confederation and perpetual Union for making alterations therein by the Assent of a Congress of the United States and of the Legislatures of the several States… (Emphasis added).
Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several States be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.” (Emphasis added).
It is a popular myth regarding the convention that it acted completely on its own without support of the Congress or the states. But as you can see, your statement is incorrect. Congress set the agenda for the convention and also required the document be named “the Constitution.” It did require the convention report its proposals to itself for its assent (which the convention did and which Congress did assent to before sending the matter to the states for their consideration and assent) and also that such proposals be ratified by the states before the proposals took effect; in short Congress required the efforts of the convention be ratified by the states and Congress before taking effect. All the actions of the convention were directed toward its specific assignment: “alterations and provisions…revising the Articles of Confederation.” This is why if you read the Constitution and the Articles of Confederation you will see much of them contain the exact same language because the convention delegates saw no need to alter those parts of the Articles of Confederation. The rest of the original Constitution (as the Congress had requested the name change in its law) was the alterations and provisions the delegates felt were necessary to “render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.” There was never was a runaway convention in 1787, only a group of delegates appointed by their states, meeting in Philadelphia in May of 1787 to make alterations to the Articles of Confederation, as authorized by that document, the states and by an act of Congress conducting their business as specifically authorized by that law, the Articles of Confederation and the states.
I wanted to correct this part of the record because I am sure it was, as I have said, inadvertent. As with the Founders, ratification of the actions of a convention prevented any possibility of a runaway convention just as ratification today will do the same with any action taken by a convention today. I am sure Mr. Mass, Editor of the John Birch Society Bulletin in his article entitled “A Second Constitutional Convention Would Endanger Our Republic” published January 23, 2007 was just as inadvertent as yourself in your letter. I am sure he is as honorable man with as much integrity as you. I am sure as an editor he hold accuracy as his highest standard. I am sure you agree honorable men of integrity do not use half-truths, lies, myths or other such tactics in order to persuade. They present the whole truth and facts and allow truth of their arguments regarding these facts persuade their audience. I am sure that you as a man of honor share this sentiment. As such, I am sure you understand why I ask you to use your good offices to request Mr. Mass publish a correction regarding his article in the Bulletin as soon as possible to correct this inadvertent error, that is specifically that he did not point out in his article the automatic check and balance built into Article V of ratification would stop such concerns or that such actions as he describes (e.g. overthrowing the Constitution by attempting to throw out the ratification process) is a violation of already existing federal criminal law. However, this request is not the main purpose of my letter. Frankly, I find nothing gained by trading accusations worthy of Armageddon concerning a convention call back and forth. I believe in finding solutions to problems. I am sure you agree.
That is why I was surprised that neither you nor Mr. Mass chose to point out that you had won a total victory in this matter. For I am sure you realize, as a moderate constitutionalist, that your support for not calling a convention when the two-thirds applications exist, is actually support for the states, Congress or both to possess the power of veto of the direct text of the Constitution. That is, possess a power not authorized nor even contemplated by the Founders, that of allowing the government a choice as to whether or not it must obey a clause of the Constitution.
In United States v. Sprague, 282 U.S. 716 (1931) the Supreme Court stated:
“The United States asserts that article 5 is clear in statement and meaning. Contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates this is true. It provides two methods of proposing amendments. Congress may propose them by a vote of two-thirds of both houses; or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them. Amendments proposed in either way become a part of the Constitution, ‘when ratified by the legislatures of three-fourths of the several States or by Conventions in three-fourths thereof…