Don’t Be Fooled by Article V Conventions
February 10, 2011
The idea that there might be a simple fix to all our problems has seduced many thoughtful and well-intentioned men and women over the ages. If only we could do this, then all would be well.
We stand with our persevering friends and allies. But let’s not be fooled. By the very nature of man and the imperfection of politics, there are no silver bullets.
Such is the case with the proposal to hold an Article V constitutional amendments convention. A perennial question in American history, it seems on its face to be a simple suggestion to deploy a forgotten option to bring about the changes we seek.
In the course of our work advising state and federal lawmakers and conservative allies across the country, we have been giving this issue close attention and study. Along with Trent England, the director of constitutional studies at the Evergreen Freedom Foundation, I’ve written our assessment of the meaning and status of Article V as part of our Constitution Guidance for Lawmakers series. Stemming from that analysis, and taking into consideration the circumstances under which we are now operating, we have come to the conclusion that an Article V convention is not the answer to our problems. The lack of precedent, extensive unknowns, and considerable risks of an Article V amendments convention should bring sober pause to advocates of legitimate constitutional reform contemplating this avenue. We are not prepared to encourage state governments at this time to apply to Congress to call an amendments convention.
This should come as no surprise. While the congressional method of proposing amendments is unambiguous—Congress, whenever two-thirds of both Houses deem it necessary, may propose specific amendments—things get murkier with an Article V convention. The vagueness of this method led Madison to oppose the proposal at the Constitutional Convention: “difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.” Combine that with the fact that no such amending convention has ever occurred, and too many serious questions are left open and unanswered.
The requirement that amendments proposed by such a convention must be ratified by three-fourths of the states is a significant limit on the process and would likely prevent a true “runaway” convention from fundamentally altering the Constitution. But we don’t think it is at all clear, for instance, that two-thirds of the states calling for an amendments convention can limit the power of all the states assembled in that convention to propose amendments to the Constitution. Other questions include the many practical aspects of how an amending convention would operate and whether any aspects of such a convention (including going beyond its instructions) would be subject to judicial review.
That said, advocating an Article V convention as part of a state-based strategy to press Congress to pass a constitutional amendment is not unreasonable. Precisely because of the potential chaos of the process, the very threat of an amendments convention will pressure Congress to act rather than risk having one proceed. That’s what happened in the 1980s with the unsuccessful push for a balanced budget amendment (good example) but also during the progressive era with the successful push for the direct election of senators (bad example).
Serious scholars will undoubtedly continue to debate the historical record and speculate about the possibility of an amendments convention under Article V. But the argument that, as a matter of course, we should spend considerable time, money and effort right now to design, plan and implement a convention—despite the unknowns and risks involved—is both imprudent and potentially dangerous. It is a distraction that inevitably gets bogged down in a debate over technical details, taking valuable attention and focus away from the substance of the constitutional reforms themselves. Claims of the ease and efficacy of an Article V convention are also misleading to the many committed and well-meaning reformers and activists who are serious about constitutional change in the United States.
There are several very good constitutional amendment ideas circulating, and a strong consensus is beginning to coalesce around a few. We should be careful not to undermine those good efforts by tying them intrinsically to the dubious process of an Article V convention.
There may be a time in extremis when an Article V convention is our last option to try to preserve the Constitution. That’s how Madison at the height of the Nullification Crisis and later Lincoln in the midst of secession and the Civil War looked at it. But just when there seems to be a national awakening to reestablish constitutional principles, American politics at the state and national level is moving in the right direction and a decisive election is on the horizon—that dark time is not now.
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