- Pressing for the Convention is a Necessary Strategy
- A Convention of States is Safe
- An Article V Convention has Never Been Held Before
- Ratification - The Ultimate Safeguard
- One Last Thought
Article V of the US Constitution clearly provides 2 equivalent paths to the proposal and ratification of amendments:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States..."
Up until now, all 27 amendments have been passed using the first of the 2 methods, where Congress has proposed the amendments for the legislatures' ratification. So why is a convention of states necessary to propose this amendment? It becomes necessary when Congress itself is the problem. The 17th amendment is the best example we have of a convention campaign effectively working to add an Amendment to the US Constitution in this situation.
In a discussion moderated by Conference Co-chair and HLS Professor Lawrence Lessig in 2011, HLS Professor and constitutional scholar Laurence Tribe considered the structures that would define an Article V Convention:
"[T]here may be certain kinds of systemic breakdowns where a large majority of the people of the United States want something to happen. For example (and I take this just as an example), they want to limit the ability of amassed corporate wealth to dominate American politics. Now, I count myself as part of that group. […] But it may be the case that the very things that make us want to change the influence of corporate money on politics will make it essentially inconceivable that Congress would propose that amendment to the states. Now, if we get that kind of lock down, […] then I think we’re at least in the territory where I think there’s perhaps a plausible systemic case for a limited purpose convention […]"
In other words, Congress is unlikely to bite the hand that feeds it. The 17th amendment was a similar example.
Until the early 1900s, U.S. Senators were appointed by the State Legislatures. This was acknowledged as a form of corruption due to the disproportionate influence wealthy individuals and special interests had over the process. The Senate became so corrupt that individual senators took nicknames such as the "Coal Senator," the "Bank Senator," and the "Oil Senator."
The people responded to this overt corruption by using every tool of democracy available to them including petitions, local legislation, ballot referendums, educational campaigns, resolutions calling on Congress to propose a Constitutional Amendment, and finally, after all else failed, applications for an Article V convention to propose an Amendment. This was later referred to by the Congressional Research Service as the “prodding effect.” It worked, and could be very useful today.
When the Article V convention movement was just one state shy of the ⅔ needed to force a convention on this topic, Congress reacted by proposing an amendment for the direct election of U.S. Senators to the states for ratification, resulting in the 17th Amendment to the U.S. Constitution.
It seems that Congress would prefer to propose an amendment themselves, even if it is not in their own corrupt best interest, to avoid the embarrassment of an amendment that has been ratified without their participation. This would seem to be an appropriate and valuable lesson for today.
We first relate a brief story of the writing of the US Constitution, and how that relates to the safety of an Article V convention. Next we present the arguments against such a convention, and we respond to each of those arguments.
Where appropriate we provide references to peer-reviewed journal articles, recognized legal scholars, the American Bar Association, the US Department of Justice, the US Congressional Research Service, Supreme Court Justices, and US Senators and Congressmen, and the words of the Framers of the Constitution themselves.
From September 11 to 14, 1786, a political convention was held at Mann’s Tavern in Annapolis, MD that was attended by twelve delegates from New Jersey, New York, Pennsylvania, Delaware, and Virginia. At the time, under the Articles of Confederation, each state was largely independent from the others, and the national government had no authority to regulate trade between and among the states. New Hampshire, Massachusetts, Rhode Island, and North Carolina had appointed commissioners who failed to arrive in Annapolis in time to attend the meeting, while Connecticut, Maryland, South Carolina, and Georgia had taken no action at all.
The Annapolis Convention was called in direct response to deficiencies in the Articles of Confederation related to interstate trade. But even in the resolution of that Convention that was provided to the states, and eventually to Congress, there was doubt that the revisions to the Articles would be limited to interstate commerce:
“[T]he power of regulating trade is of such comprehensive extent…that to give it efficacy…may require a correspondent adjustment of other parts of the Federal System.”
Even so, Congress authorized the opening of the Philadelphia Convention the following year.
The direct result of the Annapolis Convention resolution and the ensuing events was the Philadelphia Convention of May 25 – September 17, 1787, during which the United States Constitution was drafted. The Articles of Confederation allowed for modifications to the document only as the result of a two-thirds vote in Congress followed by ratification by all of the state legislatures. That was, eventually, the process by which the US Constitution was adopted.
The framers of the Constitution saw this process as a potential weakness, and allowed for a second process, a convention of states, for times when Congress itself was the problem. Surely, during the process of writing a historical document where every word was so carefully considered, the idea of a second path to an amendment would be one that the Framers considered to be safe and viable when it was not already available to them at the time.
The main point of the story is this: The Philadelphia Convention, later known as the Constitutional Convention, was called for the express purpose of modifying the Articles of Confederation because that document was severely lacking. That Convention, and one that is called under Article V of the current Constitution, are totally different, having different expectations, called under very different circumstances, and guided by different systems of laws. In 1973, the American Bar Association concluded that an Article V convention can be "an orderly mechanism of effecting constitutional change when circumstances require its use." That was not the case in 1787.
Several left-leaning groups,chief among them Common Cause, have argued vehemently against the use of Article V conventions. They argue correctly that such a convention has never been used to amend the Constitution. Of course, that by itself is insufficient to rule out its use; those opposed to it fear the prospect of a “runaway”convention. They claim there are several reasons a convention can “run away”or become a threat to the entire Constitution, including the Bill of Rights and the very method by which the amendment itself is ratified, the same way the Philadelphia (Constitutional) Convention changed the Articles of Confederation.
Our opponents claim:
- There is nothing to prevent individual delegates from bringing up and voting on matters unrelated to that for which the convention was originally called;
- Calls for conventions on unrelated subjects can be combined;
- There is no way to control the subject of the amendment that a convention eventually proposes to the states;
- The convention can modify the process by which its own and other amendments are ratified; and
- It has never been done before
Common Cause is an honorable institution fighting to remove the influence of big money from our elections... except they have actively impeded all efforts to pass state resolutions for Article V conventions, including those called to address the campaign finance issue.
Common Cause is mistaken about this, and there is extensive evidence to support this assertion.
The time to use an Article V convention is when Congress itself is the problem. Now is such a time. Supreme Court rulings in the Citizens United case and others have created a no-holds-barred system in which Big Money steamrolls the democratic process. A Congress that is the result of this increasingly lawless system can hardly be expected to propose an amendment to dismantle that system without an extraordinary level of public pressure. A citizen drive toward a convention of states under Article V would apply such pressure.
Although he is often quoted out of context, Justice Antonin Scalia during a debate in 1979 was very much in favor of using an Article V Convention: "I really want to see the process used responsibly on a serious issue so that...we can learn how to use the process responsibly in the future." He also said this:
"The Congress is simply unwilling to give attention to many issues which it knows the people are concerned with," Scalia explains. "Which issues involve restrictions upon the federal government's own power. I think the founders foresaw that, and they provided this method in order to enable a convention to remedy that."
Keeping delegates in line and ensuring the convention stays on topic are two sides of the same coin. For a convention to stray from its original topic would require one or more delegates to propose topics that were not included in the original resolution approved by their state legislatures.
As of this writing, 9 states have laws making it a felony for any delegate to a state-called convention to call for or vote on any topic that was not part of the original topic in the resolution calling for the convention in the first place. That in itself is a major deterrent to off-topic voting, but there are others.
So far there have been more than 150 successful resolutions by individual states calling for Article V conventions. They have been on a wide range of topics. One such set of resolutions, for a balanced budget amendment, succeeded in 28 states. However, because it could not be combined with resolutions on other topics in other states, it has not passed the two-thirds threshold and has not succeeded in calling for a convention. As confirmed by the Department of Justice in 1987, the limited scope of an Article V convention establishes that an Article V convention cannot simply rewrite the entire or any part of the Constitution; it can only propose amendments to the existing document.
In September 1987 the Justice Department concluded that Article V Conventions can be called "for limited purposes, and that a variety of practical means to enforce such limitations are available," and that "Congress may decline to designate the mode of ratification for those proposed amendments that it determines are outside the scope of the subject matter limitation and therefore beyond the authority of the convention to propose."
In 2016, the Congressional Research Service concluded that a call for a Convention can be disapproved by Congress for "not only a departure from the policy issue for which the convention had been called, but also failure to follow procedures prescribed in the authorizing legislation."
In its 1973 "Report of the ABA Special Constitutional Convention Study Committee," the American Bar Association resolved that "Congress has the power to establish procedures limiting a convention to the subject matter which is stated in the applications received from the state legislatures."
In October 1979, in a Memorandum Opinion for the Attorney General on "Constitutional Convention--Limitation of Power to Propose Amendments to the Constitution," the authors want to put behind us the confusion between limited and general conventions. In an Article V convention, they write "the constitutionally mandated procedures would operate to deprive the convention of power to make constitutionally viable proposals except with respect to subjects within a predetermined field. That field, however broad or narrow,would be defined by the extraordinary legislative act that initiates the convention process, the 'Application' of the legislatures of the States." And at the close of the convention, "Congress would have no power to provide for the ratification of any proposal propounded by a constitutional convention unless that proposal were responsive to the application that justified the gathering of the convention in the first instance."
So Congress shall call a convention (that is, they are compelled to do so), but only for limited purposes, and can withhold any proposed amendment from ratification if it is not responsive to the original application from the state legislatures.
That is absolutely correct, although there have been many attempts to hold them, and many amendments to the Constitution have been proposed by Congress only as a result of the pressure brought about by the threat of an Article V convention. The most obvious among these is the 17th Amendment, requiring the direct election of senators, which was only proposed by Congress after several states' legislatures passed resolutions calling for an Article V convention.
Never having held an Article V Convention is hardly a reason to avoid holding one, or for avoiding any potentially beneficial untried behavior. If it was, Americans would never have visited the moon in 1969.
Article V of the Constitution describes two methods of proposing amendments: either by a two-thirds vote of both houses of Congress, or by the approvals of two-thirds of the state legislatures. Both are mentioned equally in Article V. After that, the next step is for three-quarter of the states to ratify the amendment, regardless of which method was used to propose the amendment. Just one legislative house in as few as 13 states would need to reject an amendment in order for its ratification to fail. In other words, ratification is the ultimate safeguard against harmful amendments regardless of which method is used to propose a Constitutional amendment.
Justice Scalia once calculated the "percentage of the populace [that] could prevent an Amendment to the Constitution. And, if you take a bare majority in the smallest states by population, I think something less than two percent of the people can prevent a Constitutional Amendment. It ought to be hard, but it shouldn’t be that hard."
The objections to an Article V Convention raise fears about what can be proposed during such a convention, including re-writing the rules of ratification itself. Whenever considering what might be the result of such a convention, think about what could be the result of a proposed amendment that comes from Congress: What are the safeguards preventing them from writing an amendment proposal that removes the Bill of Rights? Or that revises the ratification process? The only safeguard is that we seem to trust two-thirds of our elected Congressmen and women and Senators to write meaningful proposals (which, of course, they have not always done). Why would we trust two-thirds of our state legislatures less?