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INTERVIEW- What Is A Convention of States?
Retired Law Professor Robert Natelson Speaks Out

The Dakota Leader interviewed Professor Robert Natelson, retired law professor and author by phone on Feb. 22 to clear up misconceptions about invoking Article V, a Convention of States. We thank Professor Natelson for his time.

The Dakota Leader- Professor Natelson, thank you for joining us.

Professor Natelson- Thank you!

The Dakota Leader- Please explain to our readers who you are?

Professor Natelson- I’m a retired law professor who has done
extensive research on the Constitution. Taught Constitutional Law at the University of Montana. In 2009, I took on a project that looked at Article V, particularly the meaning, protocols and a Convention for Proposing Amendments (to the Constitution). I became the most published constitutional scholar, in both scholarly and popular literature on the Constitutional Amendment process.

The Dakota Leader- And what are the books and other writings that you’ve published concerning Article V, Convention of States?

Professor Natelson-
The Law of Article V (a legal treatise) in addition to quite a few scholarly articles on this subject (Tennessee Law Review, Florida Law Review, Harvard Journal of Law and Public Policy, Marquette Law Review and a book chapter on James Madison and the Convention process). In addition, I moderate a site called The Article V Information Center, to which I contribute findings, information, etc., pertaining to the amendment process.

The Dakota Leader- Recently,
Lee Schoenbeck, the S.D. Senate President Pro Tempore, was quoted on a South Dakota radio station that people who believe in an Article V Convention of States have “rocks in their heads.” Now, as the main scholar in this country who has studied both colonial and state conventions vis-à-vis Article V of the U.S. Constitution, is that accurate?

Professor Natelson- I’ve known a lot of good and intelligent people who’ve supported the Convention process, but I’ve never known any that have “rocks in their heads.” If you go through the list of supporters of Article V, it’s truly extraordinary.
Professor Michael Rappaport, University of San Diego, a leading constitutional scholar, has confirmed many of my findings, and who is the head of the Center For the Study of Originalism, probably the premier institution of its kind. Another example, Professor Robert George of Princeton, arguably the leading Catholic lay philosopher in the United States today. I don’t think anyone would think he has “rocks in his head.” The man who is generally conceded to be the most intelligent and creative of national conservative talk show hosts, Mark Levin, who wrote The Liberty Amendments, certainly doesn’t have “rocks in his head” [Editor’s note: Mr. Levin, a lawyer, has challenged Schoenbeck, also a lawyer, to a national, public debate on this issue. Audio included]. Gov. Greg Abbott of Texas, the second most populous state in the United States, and highly successful, I don’t think he has “rocks in his head.” Usually it is the people who OPPOSE Article V who almost always suffer from very little knowledge of the process and who labor under true misapprehensions about the project. That’s been a fairly safe generalization, though I cannot say this about the legislator you mentioned, as I don’t know him. The Dakota Leader- Could you please explain what Article V actually reads in the U.S. Constitution so that our readers can understand it once and for all?

Professor Natelson- Well, paraphrasing, since anyone can read it (
Article V). The principal drafter of Article V was James Madison. It says (1) The Constitution can be amended; (2) it authorizes amendments only to THIS Constitution. In fact, it uses “this Constitution” twice; (3) in order for an amendment to become law, it must be ratified by either three-fourths of the state legislatures or three-fourths of state conventions, and that choice is up to Congress. It also says that before an amendment can be ratified, it must be formally proposed. The two ways of proposing are, first, Congress may propose by a two-thirds vote of each house, or a Convention for Proposing Amendments may propose. Finally, the states can FORCE Congress to call a Convention for Proposing Amendments if two-thirds of the state legislatures demand one on a particular topic or topics.

The Dakota Leader- And all of this, to be clear, is right in the text of Article V of the U.S. Constitution?

Professor Natelson- Correct. It’s all in the text, with one exception: when you calculate the two-thirds of the state legislatures necessary to force Congress to call, Article V doesn’t explicitly say that the two- thirds have to be asking for a Convention on the same topics. Every part of the Constitution has to be read in the context of the customs, law and the understanding of the time in which it was written. For example, when the Constitution reads “the writ of habeas corpus may not be suspended,” it doesn’t define that; it means that that understanding of that phrase was understood – unanimously – at the time. 1785-1786 – there were two separate Convention proposals going on. One for navigation of the Chesapeake Bay, and another one to deal with trade. They weren’t put together, because they were separate topics.

The Dakota Leader- Can there be a
“runaway convention” at all?

Professor Natelson- No. If it was ever possible, it’s not possible today. (1) Look at the history: there has never BEEN a runaway Convention of the States, and we’ve had 42 of them. (2) The law. The law is that if I assign an agent to sell my house, that doesn’t give him the authority to guard my child. If I assign a broker to sell my stock at an exchange, that doesn’t give him authority to sell my house. Delegates are agents of the states. That’s the legal answer. (3) Politically, because the overwhelming majority of the commissioners will be selected by the state legislatures, they’re going to be people with a certain amount of political savvy. No one is going to want to go home after disobeying their state commissions and instructions. And if they did that, then the outgoing convention ratification by those states would be nil. (4) Technologically, it’s no longer possible. In the old days, conventions would meet far away from the legislatures that sent them, in secret, and then they might (although they never did). Today, however, we know the convention is going to be open, televised, the legislatures who sent them will be watching in real time, and some blabbermouth who wants to talk about something else, that guy is going to get a text message from home, “Sit down and shut up,” and that guy’s going to be recalled.

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The ”runaway” convention theorists never mention the 41 [other] conventions. Their claim is only based about the Constitutional Convention of 1787. And that failure is theirs in not reading the documents showing the delegates’ instructions, even at that time. It’s absurd. So, they don’t read the documents; they don’t read, period. And on the few occasions when they do, they don’t understand what they read. And whenever something new comes up, they don’t read that, either. We had a Convention in Phoenix in 2017. Did well. To listen to these opponents, as far as they were concerned, it never happened. They live in a closed world where what they read confirms their biases. It’d be funny, but they’re playing dice with the future of the country. Their ignorance is preventing a solution to the perilous situation the course of the country is on.

The Dakota Leader- Why do you believe that opponents of Article V are so vehement in their opposition?

Professor Natelson- Many opponents of Article V, including those who are active in disinformation, oppose it because they are apologists for big, centralist government. They want power concentrated in the Congress and the president. That’s why so many are concentrated in Washington, D.C.
Common Cause, the Center On Budget and Policy Priorities [CBPP], etc. The more power in D.C., the more influence they have. Some of the law professors who crafted some disinformation are tightly connected to them- Professor Charles Black, who invented the myth that the Congress could control the Convention, professor at Yale and a Supreme Court advocate. William Swindler, William and Mary Law School, personal friend of Justice Warren Burger, the same thing. David Super: where is he employed? Employed at Georgetown University, and a former employee of CBPP. As for the right-wing opponents, I think their motivations are more complicated. I can only speculate as to some. One is that scaring people about a Convention is a good fundraising tactic. One gentlemen here in Colorado, a Second Amendment activist, came out against it. When asked by the state COS organization, he really didn’t know much about it. Also, some people are of a conspiratorial frame of mind. There’s a certain psychology with that. They tend to fall for this kind of tale that a Convention will “run away.” And, of course, some of these are the same people who read things which confirm their biases. One of the strongest advocates for COS here in Colorado used to be a member of the John Birch Society! He told them that and they threw him out of the organization!

The Dakota Leader- Speaking of that, as you know, the John Birch Society is vehemently against an Article V Convention of States. Yet is it not true that a former leader of theirs, Larry MacDonald, actually submitted an
Article V resolution on behalf of the JBS, submitting it into the Congressional Record in 1975?

Professor Natelson- Yes, that’s true. They favored the Liberty Amendment, and favored a Convention to promote it. I think what happened is their leadership
imbibed the disinformation by liberal organizations, persons and media. And I believe this because I remember seeing a videotape by the JBS and a man is talking about the Convention and how wrong it is, etc. At the end, the list of all opponents were pretty much ALL liberal! Theodore Sorenson (Kennedy speechwriter), Arthur Goldberg (liberal Supreme Court Justice), Lawrence Tribe (Harvard Law Professor). Tribe, by the way, wrote an article in 1979 about the unanswerable questions about the Convention. When Eagle Forum passes out the “Twenty Questions,” it’s Larry Tribe’s list!

The Dakota Leader- Have states gotten together to solve problems themselves outside of Article V, historically?

Professor Natelson- Yes, many, many times.

The Dakota Leader- How many times?

Professor Natelson- I’ve been able to identify
42 Conventions of States. Now, states get together in other ways, too. Sometimes . . . for example, Colorado and Nebraska negotiated bilaterally about the Platte River (signed in 1923). There’s a Uniform Laws Commission, which is an interstate commission. Conventions of states can be as small as three states or they can be general conventions, which are national in character.

The Dakota Leader- Did the American colonies do the same previous to the American Revolution?

Professor Natelson- Yes. Twenty times. One was a Convention of Colonies in Lancaster, Pennsylvania, that negotiated treaties with Indian tribes.
The Albany Congress of 1754, among whose commissioners Benjamin Franklin was the most prominent, produced the Albany Plan of Union. Another one was the Stamp Act Congress of 1765, designed to coordinate a common defense against the Stamp Act. And then the First Continental Congress of 1774 was a Convention of States, and it constituted a common defense against British overreaching. Convention and Congress, in the literature of the time, were used interchangeably.

The Dakota Leader- Really?

Professor Natelson- Yes. They eventually changed it when our own
Continental Congress became a permanent body in 1775- that’s when we stopped using the word “Congress” to refer to conventions.

The Dakota Leader- Who was the main person of our Founding Fathers to insist upon an Article V, Convention of States?

Professor Natelson- No main person. With the presentation of the Virginia Plan, by Edmund Randolph, it was understood by all that there was to be an amendment procedure. The idea of using a Convention for Amendment came out of the first draft of the Constitution, by the Committee of Detail, Aug. 6, 1787. No disagreement, and it had to be amendable WITHOUT the consent of the national legislature (i.e. – Congress).

The Dakota Leader- And did states, in fact, get together to solve problems AFTER the American Revolution?

Professor Natelson- Yes. There were 11 Conventions of the States between 1776–1787, and then there have been another 11 since then.

The Dakota Leader- Explain the significance, if you will, of the
Washington DC Peace Conference of 1861 prior to the onset of the Civil War in April of 1861.

Professor Natelson- That was a gathering of state delegates called to amend the U.S. Constitution to stop the imminent war, correct? Dry run for a Convention of Proposing Amendments. And the process could work
even at a time of severe national division.

The Dakota Leader- Last year, in February of 2021, Sen. Schoenbeck, in the state Senate Affairs Committee, when Article V was stopped in that Committee, had this to say about it (at the 1:42:50 mark
here)-

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“Yes, I have some things, Mr. Chairman. I think we all appreciate the passion. This is, I believe, the third time this issue has been up in this session of the Legislature, which makes it easily the most vetted issue of any that, uh, have been discussed. Uh, and, I uh, I may be the only member of the Legislature that has a copy of The Federalist Papers in his motel room, which, you probably have a lot more interesting things to read, but are fascinating and, umm, I have a collection of books on the Founding Fathers; read dozens and dozens of them there in my living room at home. And the biggest reason to be concerned about it, if this were to actually come to fruition, for a rural state, is the Connecticut Compromise. Umm, it is the strength that we have in the system, and uh, it would be the bane of all of the states where the population is, and I can’t imagine why any rural state would ever subject themselves to the risk of that process.”

The Dakota Leader-What about his concerns with the Connecticut Compromise? Is that something that is a germane or relevant fear?

Professor Natelson- The Connecticut Compromise provided the House would be apportioned mostly by population and the Senate apportioned by states. If the good legislator had read Article V, he would have seen that the equal representation in the Senate that South Dakota enjoys is unamendable. It cannot be changed. So, even if a Convention of States were to meet, and propose such an amendment, it could not, because the equal representation of the state is UNAMENDABLE. An Article V is a Convention for Amendments to the states. Every state has an equal vote. Now, two- thirds of the states have below-average populations. That means that two-thirds of the states have an interest in INSURING that they don’t lose their equal representation. You cannot get anything through the Convention that two-thirds of the states oppose.

The Dakota Leader- Bottom line, Professor: Is there any OTHER way to have real federalism and control the administrative state of the federal government as it is now as opposed to what the Founding Fathers, and the states who created the federal government, intended? Is there some other way?

Professor Natelson- No. I think experience has shown that there’s no other way. We have tried every other possible legal procedure for righting the federal balance over the past 50 years, including the measures the opponents have put up. This is the last constitutional option.

The Dakota Leader- Is there anything else you’d like to clear up in relation to Article V, Convention of States?

Professor Natelson- No, I think we pretty much covered it.

The Dakota Leader- Thank you for your time.


--Staff Reports

Post Date: 2022-02-23 10:42:53Last Update: 2022-03-03 14:23:35

    


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