Many Americans worry about the ever-increasing size, scope, and reach of the federal government. They point out that it spends beyond its means and for the most part operates outside of the strictures of the Constitution. They also point to various rulings by the Supreme Court of the United States that have effectively changed the structure and character of the Constitution without formally changing the text and, in the process, have facilitated the dramatic expansion of federal power at the expense of the states, the people, and civil society.[1] This has been exacerbated by the dramatic expansion of the administrative state (facilitated in part by Congress’s excessive delegation of its own legislative power to executive branch agencies[2]), coupled with the extreme deference that the Court has shown to those agencies,[3] something that the Framers of the Constitution would likely have found unimaginable.[4]
After more than a century of vast expansion of the federal government’s functions and the vesting of broad authority in large numbers of agencies of a federal administrative state, there seems to be little room left for the principle of federalism that respects the traditional role of the states in our federal system and little meaning left to the Tenth Amendment’s guarantee that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
A number of Americans view Congress as intransigent (especially when it comes to proposing constitutional amendments that would rein in its power to tax and spend without limit or to limit the reelection of incumbent Senators or Representatives) and the Supreme Court as having strayed from the text of the Constitution. Many of them conclude that the American people need to go around Congress and convince state legislatures to initiate the process under Article V of the Constitution, which forces Congress, upon application of two-thirds of the states, to call a convention for proposing amendments.[5] The text of Article V provides a limited role for Congress (calling the convention), no role for the Supreme Court, and no role for the President.[6]
Article V proponents argue that such structural problems, resulting in a form of federal tyranny, can be remedied best (and perhaps only) through an Article V convention, which would give the states and the people a more direct role in determining just how much power the federal government should have and whether some of its existing power should be returned to the states and the people. Article V, they contend, would enable the states to convene for the purpose of proposing and considering amendments among themselves, completely bypassing Congress, the President, the courts, and the federal bureaucracy.
The process specified in Article V for a convention to propose amendments raises many questions that require careful consideration. Questions arise concerning how such a convention would work, what types of amendments it might produce, and whether some of the proposed amendments would successfully rein in the federal government and reinvigorate federalism.
Amending the Constitution
In 1833, in his Commentaries on the Constitution of the United States, Supreme Court Justice Joseph Story stressed the importance of having a process to amend the nation’s charter:
It is obvious, that no human government can ever be perfect; and that it is impossible to foresee, or guard against all the exigencies, which may, in different ages, require different adaptations and modifications of powers to suit the various necessities of the people. A government, forever changing and changeable, is, indeed, in a state bordering upon anarchy and confusion. A government, which, in its own organization, provides no means of change, but assumes to be fixed and unalterable, must, after a while, become wholly unsuited to the circumstances of the nation; and it will either degenerate into a despotism, or by the pressure of its inequalities bring on a revolution. It is wise, therefore, in every government, and especially in a republic, to provide means for altering, and improving the fabric of government, as time and experience, or the new phases of human affairs, may render proper, to promote the happiness and safety of the people. The great principle to be sought is to make the changes practicable, but not too easy; to secure due deliberation, and caution; and to follow experience, rather than to open a way for experiments, suggested by mere speculation or theory.[7]
Article V, which outlines the mechanism for amending the Constitution, provides two different ways in which constitutional amendments may be proposed: (1) by two-thirds of the House of Representatives and the Senate or (2) by a convention called by Congress on the application of two-thirds of the states. Specifically, Article V states that:
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,[8] 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,[9] or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress ….
The Constitution of the United States has been amended 27 times.[10] A convention of the states for proposing amendments has never been convened. Thus far, all 27 amendments originated in Congress and were subsequently sent to the states for ratification.
Over the years, many states have submitted applications for Congress to call an Article V convention on a variety of topics.[11] Although an Article V constitutional convention[12] has never been called, the states have come close to amassing applications from two-thirds of the states, and on those occasions, the mere threat of being forced to call a convention appears to have prompted Congress to act.
- In 1912, for example, the states were one application shy of forcing Congress to call a convention to consider an amendment requiring the direct election of Senators. In response, Congress passed the Seventeenth Amendment and sent it to the states for ratification.[13]
- Similarly, the states came within two applications of requiring Congress to call a convention to consider a balanced budget amendment when Congress passed the Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act of 1985,[14] significant parts of which were subsequently declared unconstitutional by the Supreme Court.[15]
External pressure from the states has not always worked, though. In the 1960s, 33 states (one short of the requisite two-thirds) applied for a convention to address legislative apportionment issues,[16] but Congress did not propose an amendment.[17]
Article V and the Constitutional Convention
Addressing Article V, James Madison explained in Federalist No. 43:
It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.[18]
In other words, Article V was designed to strike a balance by effecting a compromise between those who might wish to treat the Constitution as if it were a mere piece of legislation that could be amended easily and often and those who would wish to make it virtually impossible to amend our founding charter regardless of the circumstances and perceived need to do so. Above all, Article V ensures through the ratification process that amendments have substantial support among the people by requiring ratification of the proposed amendment by three-fourths of the states (38 at present) before it could take effect.
Article V was first introduced at the Constitutional Convention in Philadelphia on May 29, 1787, as part of the Virginia Plan,[19] which provided that the “Articles of Union” should be amended “whensoever it shall seem necessary, and that the assent of the National Legislature ought not be required thereto.”[20] This provision was referred to in the Convention’s Committee of Detail, which revised the draft to state that “[t]his Constitution ought to be amended whenever such Amendment shall become necessary; and on the Application of the Legislatures of two thirds of the States in the Union, the Legislature of the United States shall call a Convention for that Purpose.”[21] It was subsequently revised when some, especially Alexander Hamilton, objected that this would give the states too much power over Congress.[22]
A compromise, first proposed by James Madison and eventually adopted with only slight modification,[23] was the dual method for proposing amendments, including a mechanism in which Congress would be required to call a convention to propose amendments once two-thirds of the states filed an application requesting it. This would reduce the ability of Congress to block amendments that two-thirds of the states desired; as Alexander Hamilton noted in Federalist No. 85, “[t]he Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.” He added, “[w]e may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”[24] Virginia delegate George Mason was particularly adamant on this point, believing that any procedure that required congressional approval of amendments would be improper “because they may abuse their power, and refuse their consent on that very account.”[25]
Some Current Proposals to Convene a Constitutional Convention
Numerous participants in our nation’s public life have urged the states to apply to Congress to call a convention for proposing amendments and have suggested pursuing particular amendments. For example, in The Liberty Amendments: Restoring the American Republic, prominent conservative Mark Levin expresses enthusiastic support for an Article V convention and recommends 10 amendments aimed at reducing the power of the federal government. They include imposing term limits; repealing the Seventeenth Amendment, which provided for the direct election of U.S. Senators; and allowing state legislatures to bypass Congress and amend the Constitution by a two-thirds majority.
Levin, who candidly admits that he was once skeptical of the wisdom of calling for an Article V convention, explains why he now believes the states should force Congress to call such a convention:
The state convention process bypasses the intractable architects of this calamity, who have obstructed and sabotaged all other routes to constitutional adherence. It is a bottom-up, grassroots initiative that empowers the citizenry, organizing in neighborhoods and communities, and working through the state legislatures, to stem federal domination, reverse course, and escape ruin.[26]
It is important to emphasize, of course, that there are wish lists of constitutional amendments from people across the political spectrum. In his book Six Amendments: How and Why We Should Change the Constitution,[27] retired Supreme Court Justice John Paul Stevens proposes six constitutional amendments, including one that would overrule the Supreme Court’s decision in District of Columbia v. Heller,[28] which recognized an individual right under the Second Amendment for law-abiding citizens to keep and bear arms; a second that would overrule the Court’s decision in Printz v. United States[29] and enable the federal government to order state officials to carry out federal duties; a third that would overturn the Court’s decision in Citizens United v. Federal Election Commission[30] and allow Congress and the states to circumscribe the First Amendment by setting strict limits on the amount of money that candidates or their supporters can spend on pure political speech during election campaigns; and a fourth that would abolish capital punishment.
One organization—Wolf PAC—seeks to overturn Citizens United and has called for “a limited amendments convention for the purpose of proposing a Free and Fair Elections Amendment to the United States Constitution.”[31] According to its website, four state legislatures (California, Illinois, New Jersey, and Vermont) have already applied for this kind of convention.[32]
Eleven states comprising 165 electoral votes, seeking in effect to negate the Electoral College provided for in the Constitution,[33] have agreed in principle to abide by the National Popular Vote plan, under which states would agree to pledge their electoral votes to the ticket that wins the popular vote around the country. The plan would be “activated” once the number of states totaling 270 electoral votes signed on to the plan.[34]
Among conservatives and libertarians, the most prominent proposals include those of the Balanced Budget Amendment Task Force, the Convention of the States Project, and the Compact for America.[35]
The Balanced Budget Amendment Task Force is a grassroots-driven organization that is seeking to have states apply to Congress to call a convention to consider a balanced budget amendment. The task force has drafted model state applications and legislation designed to limit the delegates’ authority to consideration of an amendment to balance the federal budget. According to the group’s website, 27 of the required number of 34 states have submitted balanced budget amendment applications.[36]
In 2014, a group called Citizens for Self-Governance began its “Convention of the States” project,[37] which urges states to apply to Congress to call a convention to draft amendments that will limit federal power and address what they identify as “four major abuses perpetrated by the federal government”: the spending and debt crisis, the regulatory crisis, congressional attacks on state sovereignty, and the federal takeover of the decision-making process.[38] Although the group has not proposed specific language for a constitutional amendment, its members support amendments that would balance the budget, redefine the General Welfare and Commerce Clauses of the Constitution, prohibit the use of international treaties and international law to govern domestic law, impose term limits on Members of Congress and Supreme Court justices, place an upper limit on federal taxation, and require the sunsetting of all existing federal taxes and a supermajority vote to replace them with new, fairer taxes.
The group has produced a model resolution for state legislators to use when applying for a convention. Thus far, this resolution, which was recently endorsed by the American Legislative Exchange Council, has been passed by five states (Tennessee, Florida, Georgia, Alaska, and Alabama) and is being considered by several others.[39]
Compact for America[40] urges states to enter into a binding interstate “compact” in which they would legally obligate themselves to support the calling of a convention for the sole purpose of having delegates cast a straight up-or-down vote on a pre-drafted balanced budget amendment.[41] This amendment seeks to limit federal spending by:
- Requiring that total federal outlays not exceed total receipts unless excess outlays are financed through authorized borrowing under the established debt limit;
- Establishing the debt limit at 105 percent of the outstanding debt at the time of the amendment’s ratification;
- Prohibiting any increase in the federal debt limit unless a majority of the states approve it;
- Requiring the President to designate specific expenditures for impoundment when outstanding debt exceeds 98 percent of the debt limit; and
- Requiring two-thirds approval in both houses of Congress to raise or implement new taxes (although no such approval is necessary if a new end user sales tax is implemented that would replace “every existing income tax levied by the government of the United States” or if an existing exemption, deduction, or credit is reduced or eliminated).[42]
In addition to the text of the proposed balanced budget amendment, the compact sets forth the rules that would govern delegate selection and the convention itself (down to the precise location and date). Significantly, the compact would not take effect until joined by 38 states (not coincidentally, the same number needed for ratification), a provision that is intended essentially to make inevitable the results of the convention and ratification process, rendering them mere formalities.
Thus far, four states (Georgia, Alaska, Mississippi, and North Dakota) have joined the compact. By its own terms, the compact expires seven years “after the first State passes legislation enacting, adopting and agreeing to be bound by this Compact,” which, according to the organization’s website, will be April 12, 2021.
Can an Article V Convention Be Limited?
Many open questions remain about the process of amending the Constitution by means of an Article V convention. Such questions include:
- Must the applications from the state legislatures match each other verbatim (a task that would have been difficult to accomplish at the time of the framing of the Constitution when the state of technology made communications among the states slow and ponderous)?[43] If not, how much commonality among applications is necessary, and how is the existence of sufficient commonality determined?
- After receiving the requisite number of applications from state legislatures, can Congress call “a Convention for proposing Amendments” that is limited to consideration of a particular pre-drafted amendment,[44] issue, or subject area, or would such a convention have to be open to consideration of other issues and amendments that some of the delegates might wish to propose once they have convened, thereby creating the risk of a “runaway convention”?
- Can Congress assess the validity of a state legislature’s application by, for instance, refusing to recognize an application to consider a particular amendment if Congress believes that a limited convention is not allowed?
- Are state legislature applications perpetually open once made, or can a state legislature limit the period of time for which the application remains effective?
- Can a state legislature rescind an application that it previously made?[45]
- Is Congress compelled to call an Article V convention if it concludes that applications for a limited convention are improper?
- Can Congress determine the number and method for selecting delegates to such a convention or the rules of procedure and voting rules at the convention?[46]
- Can states place enforceable limits on the authority of their delegates to the convention?[47]
- Can Congress place limits on where, when, how, and how long such a convention should be held, or would such matters be left to the delegates or the states themselves?[48]
- If the delegates at a convention passed an amendment that Congress deemed beyond the scope of the convention, could Congress refuse to forward the non-conforming amendment to the states for ratification?
- Would the answers to any of these questions be subject to review and enforcement by federal or state courts? If so, could the courts consider such matters in lawsuits filed as events unfold, or must consideration of any such lawsuits await the conclusion of an Article V convention or the final outcome of any subsequent ratification process?
There are no easy or definitive answers to any of these questions, and serious scholars have offered differing views.[49] There is little doubt that some states and scholars have been reluctant to propose an Article V convention, both because of the fear of a “runaway convention” in which the delegates deviate from the purposes for which the convention was sought by the requisite number of state legislatures and propose alternative, perhaps ill-advised amendments relating to other issues or because of the fear that the legal uncertainties surrounding any convention of the states would likely result in a series of time-consuming, lengthy lawsuits that could result in the entire endeavor being undone.
Some prominent scholars contend that a “Convention for proposing Amendments” is just that—a convention to propose amendments, any amendments, for the convention delegates to consider—and that it cannot be limited to a particular, pre-drafted amendment or to a limited subject matter. Professor Michael Stokes Paulsen of the University of St. Thomas School of Law, for instance, argues that this understanding is in keeping with the commonly understood meaning of “convention” at the time the Constitution was ratified: a deliberative political body, which, by implication, cannot be constrained in its deliberations. Moreover, Paulsen contends, it would be quite odd to argue that Congress could decline to send to the states for ratification any amendment it deemed beyond the scope of the convention since the whole point of creating the constitutional convention mechanism was to reduce the role of Congress in the state-initiated amendment process.[50]
Although some scholars disagree with this characterization,[51] it is worth remembering that the delegates to the Philadelphia convention who drafted Article V had responded to a call by the Confederation Congress for a convention to consider whatever amendments to the Articles of Confederation they might deem necessary,[52] which they exceeded, only to see their actions subsequently approved by the nation through the ratification process.
Other scholars contend that a limited convention would be constitutional and that if the states applied for a convention limited to a particular subject or pre-drafted amendment, Congress would be required to call such a convention, and the convention would be obliged to consider only that particular subject matter or amendment.[53]
Some scholars argue that “a Convention for proposing Amendments” can be fairly interpreted to encompass either an unlimited convention or a limited one and that if Congress is obligated to call a convention upon receipt of the requisite number of applications, then it is perfectly reasonable that Congress should be obligated to call a convention that conforms to any limitations contained in all of those applications. Others have noted that the initial draft of Article V by the Committee of Detail provided that “[t]his Constitution ought to be amended whenever such Amendment shall become necessary; and on the application of the Legislatures of two-thirds of the States of the Union, the Legislature of the United States shall call a Convention for that purpose”[54] and that the inclusion of the phrase “for that purpose” indicates that the drafter intended for states to have the ability to call for a limited convention to address particular subjects rather than to review the Constitution in its entirety.[55]
Still others have argued that the historical evidence from the time of the Framers was that conventions served a variety of purposes—some limited and some plenary—and did not have a fixed purpose and that the structure of Article V implies an equivalence between the two triggering mechanisms: Congress’s power to propose amendments is limited to those amendments that two-thirds of both houses of Congress deem necessary, and the same is true for the states’ power, which is limited to those amendments that two-thirds of the states deem necessary.[56]
Conclusion
Many questions surrounding Article V of the Constitution merit thorough and careful consideration. Although James Madison did not object at the Philadelphia Convention to including an amendments convention in Article V, he warned “that difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.”[57] Michael Stern, former Senior Counsel to the U.S. House of Representatives and a strong proponent of the Article V convention process, has stated that “[i]t must be acknowledged…that the purely legal issue of whether an Article V Convention may be limited cannot be definitely resolved. Constitutional scholars have long debated the question, and it is widely recognized to be a quintessentially open one.”[58]
These questions loom large over the current calls of some advocates and state legislatures for such a convention and might well lead to attempts to frustrate the will of states that call for a limited convention by those who oppose the concept of a limited convention, want to use the convention to consider other subjects, or do not like the results of such a convention. Such challenges could take various forms including lawsuits that could take years and lead to unpredictable results. This is not an argument against proceeding with a constitutional convention—after all, the Bill of Rights emerged at a time when no procedures or customs existed for implementing Article V—so much as it is an observation that those who are pursuing a call for a convention to consider a particular amendment or subject area they favor must recognize the risk that a convention might consider and yield amendments that they dislike on other subjects.
An Article V convention might propose an amendment to restore or expand the liberties of the American people, but it also could propose an amendment that diminishes the liberties of the American people, or of some of the people. While it is no doubt true that the ratification process itself, requiring support from three-fourths of the states (38 at present), decreases the likelihood of some radical proposal ultimately becoming part of our Constitution, it is worth recalling that 27 of the 33 proposed amendments that have been sent to the states for ratification achieved the requisite number, and that was before the age of the Internet and social media–driven campaigns that can dramatically increase public pressure on those who are considering such an amendment and reduce the time devoted to thoughtful reflection.
Some argue that the risks of an Article V convention in the face of legal uncertainty are simply too great. Professor Gerald Gunther, a prominent constitutional law scholar, for instance, has warned that the road “promises controversy and confusion and confrontation at every turn.”[59] Michael Stern, on the other hand, argues that:
It can scarcely be denied that the limited powers granted to the Congress in Article I of the Constitution have not proved to be a meaningful check on the expansion of federal power. The Article V Convention, if available as intended to check the “encroachments of the national authority,” would mitigate this risk.[60]
Some day we may get the answers to some of the difficult and open questions about the state-initiated Article V process. If proponents of calling an Article V Convention succeed, that day may be coming soon. Regardless of the particular merits of the proposals[61] and whether these efforts ultimately result in a convention to propose amendments to the Constitution, getting people engaged in a robust discussion of important issues regarding self-governance and the proper role of the federal and state governments in the lives of the American people is a constructive and positive development.
The possibility of an Article V convention of the states has a great deal of appeal to many. With such a convention or without one, however, it remains vitally important that we continue to maintain an overriding focus on holding Congress and the President and, by extension, federal agencies accountable for the decisions they make today.
—John G. Malcolm is Director of and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
