COS-FL Opposition Debunk

Attachment: 3771/2023Sept_HCLDM_COSInfoPacket.pdf

Article V’s convention process
is part of the beautiful
constitutional machinery built
to protect the states and the
people from an overreaching
federal government.

FIVE MYTHS ABOUT

AN ARTICLE V CONVENTION

Rita Dunaway, Esq., National Legislative Strategist for Convention of States Action

Updated November 2022

THE CONSTITUTIONAL boundaries
separating the three federal branches
and setting outer limits on their power
are barely visible anymore. Many
Americans are turning toward Article
V of the Constitution to restore those
boundaries. Constitutional amendment
is strong medicine, to be sure, but it is the
medicine that our Founders prescribed
for the disease of federal overreach that is
otherwise terminal to our Republic.

Here are five myths about the Article
V antidote and its side effects.

1. An Article V convention is a “Consti-
tutional Convention” or “Con-Con.”
This point can get confusing, because Ar-
ticle V is a provision of the Constitution,

so a convention held pursuant to its terms
could be described as “constitutional” in
that sense. But what most people mean
when they describe an Article V conven-
tion as a “Con-Con” is that it is the same
type of gathering as the one in

1787

that

produced our Constitution. And that im-
plication is clearly wrong.

The distinction between the Philadelphia
Convention of

1787

and a convention held

pursuant to Article V lies in the source of
authority for each. The states gathered in

1787

pursuant to their residual powers as

individual sovereigns—not pursuant to any
provision of the Articles of Confederation
for proposing amendments.

An Article V convention, on the other

hand, derives its authority from the
terms of Article V itself and is therefore
limited to proposing amendments to the
Constitution we already have, pursuant
to the prescribed procedures.

2. We have no idea how an Article V
convention would operate.
Article V itself is silent as to the pro-
cedural details of a convention, leading

some to speculate that we are left clue-
less as to how the meeting would func-
tion. But while it’s true that there has
never been an Article V convention, per
se, the states have met in conventions
an estimated 40 times. There is a clear
precedent for how these meetings work.

In fact, many of the Framers had
attended one or more conventions,
and the basic procedures were always
the same. For instance, voting at an
interstate convention is always done as
states, with each state getting one vote,
regardless of population or the number
of delegates in attendance (that’s
why it’s a convention of states—not a
convention of delegates).

The more detailed, parliamentary rules
of the convention are decided by the
delegates at the convention itself.

3. The topic of an Article V convention
cannot be limited, so convention
delegates could re-write the entire
Constitution once they assemble.

Continued on back page

Article V’s convention
process is part of the
beautiful constitutional
machinery built to protect
the states and the people
from an overreaching
federal government.

Continued from front page

If states weren’t free to define the scope
of an Article V convention, then Ameri-
ca would have already witnessed many
of them. Over the course of our nation’s
history, states have filed over

400

appli-

cations for Article V conventions. The
reason we haven’t had one yet is because
there have never been

34

applications re-

questing a convention on the same topic.

Moreover, this proposition makes no
sense from a historical, practical or legal
perspective. In every interstate conven-
tion ever held, there was always a spec-
ified topic or agenda for the meeting.
Practically speaking, some limitation on
the topic is necessary in order for the state
legislatures to provide instructions to the
delegates they send as their agents (states
always instruct their delegates).

4. Congress would control an Article
V convention.
Anyone who has read James Madison’s
record of the Philadelphia Convention
proceedings knows that the very reason
the drafters added the convention meth-

od of proposing amendments to Article
V was to give the states a way to bypass
Congress— which has its own, express
power to unilaterally propose amend-
ments. They would never have given
Congress control over both methods.

Congress only has two powers related to
the convention: to issue the formal call,
setting the date and location of the con-
vention once

34

similar applications are re-

ceived, and to choose between two meth-
ods of state ratification for any proposals
offered by the convention. That’s it.

In fact, at least one federal court has de-
finitively ruled that Congress cannot use
any of its Article I powers—including its
power under the Necessary and Proper
Clause— to affect Article V procedures.

5. The Article V convention process
has no safeguards to protect our
Constitution from rogue delegates or
big-money special interest groups.
To the contrary, the process is so well-safe-
guarded that it has proven incredibly dif-
ficult to invoke! There are numerous, re-
dundant safeguards on the process.

First, the topic specified in the

34

appli-

cations that trigger the convention act as
an initial limitation on it. These applica-
tions are the very source of authority for
the convention, so any proposals beyond
their scope would be out of order.

Second, state legislatures can recall any del-
egates who exceed their authority or instruc-
tions. Convention delegates are the agents
of their state legislature and are subject to
its instructions. As a matter of basic agency
law, any actions taken outside the scope of a
delegate’s authority would be void.

But the final and most effective protection
of the process is the simple fact that it takes

38

states to ratify any amendment proposed

by the convention. This means that it would
only take

13

states to block any ill-conceived

or illegitimately advocated proposal.

Article V’s convention process is part of
the beautiful constitutional machinery
built to protect the states and the people
from an overreaching federal govern-
ment. It is time for us to use it.

Originally published on TheBlaze.com

(540)441-7227 |

C

ONVENTION

O

F

S

TATES

.

COM

| Facebook.com/ConventionOfStates| | Twitter.com/COSproject

Rita Dunaway

Rita Dunaway is a constitutional attorney, the author of Restoring America’s Soul: Advancing Timeless

Conservative Principles in a Wayward Culture, and co-

host of the weekly radio program, “Crossroads:

Where Faith and Culture Meet.” She

serves as National Legislative Strategist for the Convention of

States Project.

Prior to joining the Convention of States Project, Rita spent approximately 10 years as Staff Counsel
for The Rutherford Institute, where she worked to protect the civil liberties of Americans across the
nation. She has authored numerous briefs for the United States Supreme Court and the federal
appellate courts.

As an allied attorney for Alliance Defending Freedom and a volunteer for two Virginia-based
conservative policy organizations, Rita has enjoyed being involved in the public policy process for
several years and regularly testifies before legislative committees at the Virginia General Assembly.

Rita’s commentaries are published weekly in The Daily News Record in Harris

onburg, Virginia, and

have also appeared online at WND.com and The Blaze.

As a Presidential Scholar at West Virginia University, Rita earned dual bachelor degrees in 1998,
graduating summa cum laude from both the Journalism and Political Science departments. She then
continued her education as a Benedum Scholar at Washington and Lee University School of Law, from
which she graduated cum laude in 2001.

Rita is a member of the Virginia State Bar and lives in the Shenandoah Valley with her husband, Scott
and their two children.

No, a Convention of States Could Not

Change the “One State/One Vote”

Rule

Professor Robert Natelson

January 22, 2023

Could a convention of states could change the “one state/one vote” rule to one based
on population? The short answer is “No.”

In

at least 42 conventions of states

1

and colonies over 350+years, there is no precedent

for such a change. The possibility exists only in the fantasies of convention opponents.

Defenders of the federal government and other opponents of an Article V convention
raise the issue in two contradictory ways. In

urban states, they attack the Constitution’s

convention process for using the one state/one vote rule. (The say it is
“undemocratic.”) But in

rural states, they attack the Constitution’s convention process

because, they say, it might

not

use the one state/one vote rule!

(They used to claim Congress could write the rules before the evidence made that
argument

untenable

2

.

)

Why the Question is Based on Fantasy

The one state/one vote system is based on a core principle of interstate conventions:
sovereign equality. Claims that a convention might discard that core principle disregard
political, demographic, historical, and legal realties.

Let’s examine the political and demographic facts first.

Political and Demographic Realities

When the convention meets, it operates on a one state/one vote basis. To change this
to a population formula requires a vote of a majority of states present—most likely 26
of 50.

Would 26 states vote for such a change? Not in a million years. Here’s why:

•

A population formula would give states with more-than-average populations
more power at the convention. States with less-than-average populations would
lose power.

•

As of 2023, the

population of the fifty states

(that is, excluding the District of

Columbia and Puerto Rico) is 338 million. Divide that by 50 and you get the
average state population: about 6.76 million.

•

Thus, a change to a population formula, would cause every state with a
population of less than 6.76 million to lose power.

•

There are only

17 states with more than 6.75 million people. 33 states have less.

•

Even if (which is unlikely) all 17 urban states voted for a population-based
system, at least nine rural states would have to vote to reduce their own power.

•

Some of the more conservative large states like Florida, Texas, Tennessee, and
Indiana probably would not vote to change the rule—so even more rural states
would have to vote to disenfranchise themselves.

The Realities of Experience

In 42 prior conventions of states and colonies held over 350 years, there were efforts to
change the sovereign equality principle at only three. All lost.

•

At the Albany convention of 1754, there was talk about given some colonies
more weight. The idea was abandoned.

•

In 1783, the Massachusetts legislature called for a convention where the
decisions would be made by a majority of delegates rather than by a majority of
states. The call fizzled when important states simply refused to participate.

•

The 1850 Nashville Convention witnessed an effort to give larger states more
representation. It failed on a series of one state/one vote roll calls.

These experiences show how well accepted the sovereign equality principle is. It also
shows how efforts to change it cause states to rebel.

What Does the Constitution Say?

Some scholars argue that, in the Article V context, changing the one-state/one vote
formula also would be illegal. They point out that key Founders—people like Alexander
Hamilton, James Madison, and Tench Coxe—characterized an amendments convention
in ways consistent only with the principle of sovereign equality. (See, for example,
Federalist No. 85.)

Whether or not this argument is right is less important than the fact that it could tie up
any convention in litigation for months, perhaps years. Would convention
commissioners from a majority of states want to destroy their own effectiveness and

legitimacy in that way? If any tried, they likely would be recalled by the state
legislatures that sent them.

A Reminder

Although a convention for proposing amendments will meet on terms of sovereign
equality, any proposals will require ratification by three fourths of the states. Than
means they will have to be mainstream proposals with wide public support.

1

List of Conventions of States and Colonies in American History—

//https:%%//%%articlevinfocenter.com/list-conventions-states-colonies-//

//american-history///

2

No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention—

https://articlevinfocenter.com/no-the-necessary-and-proper-clause-does-not-empower-congress-to-control-an-amendments-convention/

Rob Natelson

Professor Robert G. Natelson, who contracts with Independent Institute, heads the
Institute’s Constitutional Studies Center and its Article V Information Center

1

. His vast

range of experience includes education, outdoorsmanship, grass-roots activism,
commercial talk radio, small business, initiative and referendum, political campaign
management, journalism, and the teaching and practice of several fields of law.

Most importantly, he is a nationally known constitutional scholar

2

and author

3

whose

constitutional research has been cited repeatedly by justices and parties at the U.S.
Supreme Court==as well as by federal appeals courts, and at least 16 state supreme
courts.

Rob is widely acknowledged to be the country’s leading active scholar on the
Constitution’s amendment procedure and among the leaders on several other topics.
He created the first-ever online bibliography

4

for 18th century materials used in

constitutional research.

Scholarly record

After eleven years of “Main Street”-style law practice, Rob served 25 years as a law
professor at three different universities. He taught Constitutional Law, Constitutional
History, Advanced Constitutional Law, and First Amendment. But at various times he
also taught real property law, contracts, remedies, commercial law, real estate
transactions, trusts, homeowner associations law, water law, oil & gas law, and legal
history.

His research into the Constitution’s original meaning has carried him to libraries
throughout the United States and in Britain, including four months at Oxford University.
His books and articles span many different parts of the Constitution, including
groundbreaking studies of the Necessary and Proper Clause, the Indian Commerce
Clause, federalism, Founding-Era interpretation, regulation of elections, and the
amendment process of Article V.

Since 2013, Rob has become one of the most-cited constitutional scholars by U.S.
Supreme Court justices. They have relied explicitly on his research in 39 citations in 11
separate cases. The cases are:

•

Sackett v. Environmental Protection Agency, ___ U.S. ___ (2023) (Thomas &
Gorsuch, JJ., concurring)

•

United States v. Vaello Madero, 596 U.S. ___ (2022), 141 S.Ct. 1534, 1546
(Thomas, J., concurring)

•

Espinoza v. Montana Dep’t of Revenue, 591 U.S. ___ (2020), 140 S.Ct. 2246, 2270
(Alito, J., concurring)

•

Haalan v. Brackeen, ___ U.S. ___ (2023) (Thomas, J., dissenting)

•

Health and Hospital Corp. of Marion Co. v. Talevski, ___ U.S. ___ (2023) (Thomas,
dissenting)

•

Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S.
787, 836 (2015) (Roberts, C.J., dissenting)

•

National Labor Relations Board v. Noel Canning, 573 U.S. 513, 576 (2014) (Scalia,
J., concurring)

•

Town of Greece v. Galloway, 572 U.S. 565, 605-05 (2014) (Thomas, J., concurring)

•

Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 30 (2013) (Thomas, J.,
dissenting)

•

Adoptive Couple v. Baby Girl, 570 U.S. 637, 658-59 & passim (2013) (Thomas, J.,
concurring).

•

Upstate Citizens for Equality v. United States, 583 U.S. ___ (2017), 140 S.Ct. 1287,
1288 (Thomas, J. dissenting from denial of certiorari).

He has been cited on constitutional and non-constitutional subjects in these federal
appeals court cases:

•

By Justice (then Judge) Gorsuch in Kerr v. Hickenlooper, 754 F.3d 1156,1195 (10th
Cir. 2014) (dissenting)

•

Koch v. Village of Heartland, 73 F.4th 747, 752 (2022 (op. for court, St. Eve, J.)

•

United States Telecom Ass’n v. Federal Communications Comm’n, 855 F.3d 381,
414 (D.C. Cir. 2017) (Srinivasan J., concurring)

•

Upstate Citizens for Equality v. United States, 841 F.3d 556, 568 (2d Cir. 2016) (op.
for court, Carney, J.)

•

Berlin v. Renaissance Rental Partners, 723 F.3d 119 (2d Cir. 2013) (Jacobs, C.J.,
dissenting)

•

CREW v. Trump, 939 F.3d , 131, 162 (2d Cir. 2019) (Walker, J., dissenting)

Rob’s work on constitutional and non-constitutional subjects also has been relied upon
by:

•

the highest state courts in Alaska, California, Indiana, Kansas, Maine, Maryland,
Montana, New Hampshire, New Jersey, New Mexico, North Carolina, Oregon,
Pennsylvania, Tennessee, Vermont, and Washington;

•

the highest court of the Commonwealth of Puerto Rico;

•

intermediate state appellate courts in Oregon and Washington; and

•

U.S. District Courts in Colorado, Maine Nevada, and Wisconsin.

He is a principal author of several Supreme Court briefs submitted by the Independence
Institute and other organizations to the U.S. Supreme Court, the U.S. Court of Appeals
for the Tenth Circuit, and the Colorado and Montana Supreme Courts.

In addition to his work on U.S. constitutional issues:

•

in conjunction with his eldest daughter Rebecca, he edited the first complete
Internet versions

5

of the Emperor Justinian’s great Roman law collection (in

Latin);

•

he has published widely on property law, legal history, legal remedies, and the
initiative and referendum process; and

•

he has published extensive historical and legal research on the Montana state
constitution, and he created the database the Documentary History of the
Ratification of the Montana Constitution

6

.

He is a member of the Board of Scholars of the American Legislative Exchange Council.
He formerly served as a senior advisor to the Convention of States Project and as Senior
Fellow at the Initiative and Referendum Institute.

There are several keys to his success as a scholar. First, unlike most constitutional
writers, he actually practiced law for over a decade—and his law practice bore some
resemblance to that pursued by several of the American Founders (real estate,
commercial, etc.). Second, his experience in the real world of business,
communications, and politics provide valuable perspective most constitutional writers
lack. Third, unlike most other constitutional writers, he has academic training in history
and in the Greco-Roman classics that were the mainstay of Founding-Era education.
Finally, he does not enter a research project to promote some pre-determined
conclusion. His agenda is to find and publish the truth.

Popular Market

For the popular market, Rob authored the highly influential Article V Handbook for
state lawmakers

7

and the popular book, The Original Constitution: What It Actually Said

and Meant

8

. His contributions have appeared in the following national outlets: The

Washington Post, the Washington Times, The Economist, the Epoch Times, the
American Spectator, the Wall Street Journal, Barron’s, the Daily Caller, Townhall.com,
The Hill, and CNSNews.

Activities in Colorado and Montana

He grew up on the Revolutionary War town of Stony Point, New York—which helps
explain his interest in the American Founding—but he has split most of his adult life
between Colorado (1977-1987; 2011-present and Montana (1987-2011). His writings
have appeared in most major news outlets in Colorado and in all major news outlets in
Montana, and he regularly makes personal appearances in both states. His professional
offices are in Colorado, as is his law license. When living in Montana, he created and
hosted the state’s first statewide commercial radio talk show; became Montana’s best
known political activist

9

; led victorious ballot-issue campaigns, including the most

successful petition-referendum drive in the state’s history; and helped push through
several important pieces of legislation. In June 2000, he was the runner-up among five
candidates in the party primaries for Governor of the State of Montana.

Recreation? He loves to spend time in the great outdoors, where he enjoys skiing and
hiking, either alone or in the company of his wife, daughters, and sons-in-law. He also
likes travel, science fiction, and opera, and is active in the Denver Lyric Opera Guild

10

.

1

Aricle V Information Center

http://articlevinfocenter.com/

2

Lost Meanings

//http:%%//%%archive.umt.edu/urelations/Vision/2009/lost%20meanings.html//

3

Robert Natelson: Books & Articles

https://i2i.org/constitution/articles-books-by-rob-natelson/

4

A Bibliography for Researching Original Understanding

https://i2i.org/wp-content/uploads/Originalist-Bibliography-2016-0930.pdf

5

Roman Law Sources

//http:%%//%%constitution.i2i.org/classical-roman-law-sources///

6

Documentary History of the Ratification of the Montana Constitution

//http:%%//%%www.umt.edu/law/library/montanaconstitution///

// //

7

Proposing Constitutional Amendments by a Convention of the States: Article V—A Handbook for State Lawmakers

https://alec.org/publication/article-v-a-handbook-for-state-lawmakers/

8

The Original Constitution: What It Actually Said and Meant

https://www.amazon.com/Original-Constitution-What-Actually-//

Meant/dp/1502933624/

9

COLUMN: Natelson will leave legacy of strong conservative base in Montana

https://i2i.org/wp-content/uploads/Missoulian-Johnson-

conservative-base.pdf

10Denver Lyric Opera Guild

http://www.denverlyricoperaguild.org///

—-

====== Document Outline ======

* ArticleV-FiveMyths_COSA102022.pdf
* AboutRitaDunaway.pdf
* Rita Dunaway
* One State—One Vote.pdf
* Why the Question is Based on Fantasy
* Political and Demographic Realities
* The Realities of Experience
* What Does the Constitution Say?
* A Reminder
* AboutRobNatelson.pdf
* Rob Natelson
* Scholarly record
* Popular Market
* Activities in Colorado and Montana

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Created:	2023-09-22 21:16 GMT
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