“Chance Favors the Prepared Mind.” — Louis Pasteur

For Donald Trump to run for a third term as president, a constitutional amendment is required. The 22nd Amendment, ratified in 1951, states that no person shall be elected to the office of the president more than twice. Because you need a two-thirds’ vote, the amendment route through Congress is a dead end.

Donald Trump’s only chance is the Article V Convention of the People with full power to propose constitutional amendments.  Our fates may be intertwined, as this may be the People’s last chance to amend our government before it is so corrupt it can no longer be amended.

Should We Support President Trump’s Quest?

The short answer is yes, but the reason is to repair and clarify the Article V Convention Clause to open the way for true, safe and positive constitutional change, not due to any approval of wild behavior.

Our Constitution literally has the worst kind of defect you can have in a constitution. We cannot use the constitutional convention clause which represents the People’s original power to make and alter government and is our last check against corruption. Paraphrasing George Washington’s Farewell Address, there is no moral obligation to follow the property laws if there is no constitutional convention clause. The Article V defect must be amended because the charge that our Constitution has an immoral element is true.

Just like the right to vote, the power to propose constitutional amendments is preservative of all other rights. Without it, we cannot amend structural defects discovered through time and experience, as promised and guaranteed by the framers.

If Donald Trump wants a third term, it comes with opening up the Constitution to a possible overhaul. Mature, educated citizens should be able to handle the task of proposing amendments without harming the good parts of the Constitution. If the citizenry is informed, they will elect a better educated, more virtuous set of representatives for the special purpose of constitutional amendment. If the People are wise, they will immediately call for a “Full Court Press” civics education program across the nation focused on the amendment clause in Article V.

Donald Trump, with all of his perceived faults, may be the catalyst to open a proper Convention of the People to propose necessary constitutional amendments. When we prepare our minds with study to understand the defects in Article V, we can see that the risks of a third Trump term are outweighed by the huge benefit of the People regaining the power to alter our own government when constitutional defects are discovered or when the government becomes corrupt.

The Original Promise Made by the Framers About Constitutional Amendments

At the end of the 1787 U.S. Constitutional Convention, three delegates did not sign the Constitution:  George Mason, Edmond Randolph, and Elbridge Gerry. This started the struggle for ratification of the Constitution in the states. Mason, still incensed at how the Convention ended with impatience, wrote to George Washington with a list of proposed amendments to the Constitution on Oct. 7, 1787, saying:

“(The Constitution) ought to be submitted to a Convention chosen by the People, for that special Purpose (of amendments); and should any Attempt be made to prevent the calling such a Convention here, such a Measure shall have every Opposition in my Power to give it.”

A Convention chosen by the People! Washington, Madison, and the other men who drafted the Constitution over the course of four months did not want to see their handiwork go to waste. Not to mention, this time they would be operating under the new Article V, meaning convention delegates would be elected by the People for the special purpose of constitutional amendment, not appointed by the state legislatures. The Federalists were ready to get the nation started. In their mind, amendments could come later, during the First Congress, when they could control the process better.

More importantly for today’s analysis, Mason threatened the remedy under Article V, a “Convention chosen by the People,” not appointed by the state legislatures. This is how Washington, Mason, Madison (see Federalist No. 49), and the other framers interpreted the clause just after it was written and approved by the Convention.

Birth of the Bill of Rights

The Federalists immediately went into action, devising a public strategy of proposing amendments to protect individual and minority rights (now called the Bill of Rights), but avoiding structural amendments that would alter the powers of government or the various checks and balances until time and experience reveal the structural defects to us. The strategy worked, as the state ratification conventions taking place over 1787-1788 chose to ratify the new Constitution first and then send a list of requested amendments to the First Congress for proposal under Article V.

George Washington, in his First Inaugural Address on April 30, 1789, asked the nation to “carefully avoid every alteration which might endanger the benefits of an United and effective Government, or which ought to await the future lessons of experience … .”

James Madison, who wrote Washington’s First Inaugural Address, executed the plan by proposing and guiding passage of our Bill of Rights during the First Congress. This squelched all talk of a Second Convention. Washington’s request and the People’s agreement to avoid structural amendments became a promise to us that structural amendments would be made when time and experience uncover the Constitution’s structural defects. When defects are discovered, and Congress does not act, then the Convention of the People under Article V is necessary and proper.

The Discovery of the Article V Defect and the Broken Promise

In 1964, the U.S. Supreme Court published a number of cases establishing that unless the Constitution expressly provided a contrary rule, the Rule of Representation in the United States of America is “One Person, One Vote.” The states reacted to these cases by seeking an Article V Convention, but for only one amendment, to allow state Senates to use a standard other than “One Person, One Vote.” From 1964 to 1969, 33 state legislatures voted for an Article V Convention to overturn the Supreme Court cases. When state legislators began to realize that the Article V Convention has plenary proposal power, they began to pull back and vote to retract their Article V applications. This was the first modern lesson of experience discovering the Article V Defect.

From 1975 to 1983, the states went through the same process again, but this time with a proposed balance budget amendment. After 32 state legislatures sought the convention for the single subject of a balanced budget amendment, state politicians again realized that the Article V Convention has the same full power as Congress to propose amendments. States again pulled back and retractions were made. This was the second lesson of experience uncovering the error.

Donald Trump’s quest for a third presidential term could be called the third lesson of experience showing us the flaw in the Article V Convention Clause.

The Basic Rules of the Article V Convention

The nation needs clear knowledge about the Article V Convention Clause to make an informed judgment about whether to support Trump’s quest for the chance to run for a third term as President.

The first thing to know is that the Article V Convention Clause is defective. There is no Ratio of Representation (the number of people each representative represents) and only the people sitting in Convention have the power to set the ratio. James Madison hid the defect from us. No constitutional amendment can be proposed by the convention route until the rules of representation for the convention are established. The good news is that the error is in the people’s favor. Neither Congress nor the state legislatures have the power to establish the rules of representation for the Article V Convention. The Tenth Amendment reserves this power to the people sitting in Convention.

The Article V Convention is not a “Convention of States” (meaning the state legislatures) and a Supreme Court case declaring this constitutional fact would be welcome. However, we already have the Supreme Court cases we need to conclude that the Article V Convention is a Convention of the People. Cook v. Gralike, 531 U.S. 510 (2001) made clear that the state legislatures may not limit Congress’ power to propose constitutional amendments. Because the Convention holds the exact same power to propose amendments, state legislative bodies have no power to limit what amendments the Convention may propose.

The default rule for representation under the U.S. Constitution is One Person, One Vote. Nothing in Article V provides an exception to this rule. In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 794-795 (1995), the Supreme Court reemphasizes that:

“(S)overeignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government. . . . ‘(T)he right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.’ ”

The missing Ratio of Representation in Article V opens an opportunity for those who seek true and meaningful representation.  The gap in Article V gives us the chance to fight for a proper Convention of the People, with enough representatives that working class voices have a chance to be heard in the amendment process.

About the Author

Daniel Tekunoff was born and raised in Fresno, California. He has been a licensed California attorney for thirty-two years, practicing in the area of civil litigation. He obtained a bachelor’s degree in anthropology from UCLA in 1988 and a law degree from Loyola Law School, Los Angeles, in 1992.

In 2018, he self-published a “Guide to the First Article V Convention of the People: The Constitutional Path to Taking Our Country Back.”  He has written articles for the Fresno County Bar Bulletin in the area of the Article V Convention, and maintains a free civics education channel on YouTube, Article V Convention of the People.

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