The Risks of an Article V Convention

OldBy Jack Minchew.

In the 226 years since its ratification, the United States Constitution has been amended 27 times, all through the same process, in which 2/3rds of both houses of Congress must approve an amendment, and 3/4ths of the states must ratify it before it takes effect. The Congressional method is often thought of by the public as the only way to modify the nation’s governing document, but in truth, Article V of the constitution specifies an additional mechanism for amendments that has never been enacted: the constitutional convention.

According to Article V, “on the application of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments,” which would become active “when ratified by the Legislatures of three fourths of the several States.” Such a convention would be similar to the 1787 Philadelphia convention in which founding fathers such as Washington, Madison, Hamilton, and Franklin drafted the original constitution.

No proposal to call a convention has ever achieved the support of the requisite 2/3rds of the states, despite several nearly successful attempts, such as in 1969, when 33 states (one short of the 34 needed for 2/3rds) called for a convention to address congressional apportionment, before several rescinded their applications. In fact, at one point or another, every state but Hawaii has passed at least one application for a Constitutional Convention, for a total of over 400 applications, all to no avail. Recently, though, several (mostly conservative) political organizations have pushed for a convention to, among other things, institute term limits, restrict Congress’ taxing powers, redefine the Commerce Clause, and establish a balanced budget amendment.

Disregarding the relative merits or flaws of any specific proposals, a constitutional convention, by its mere existence, would be such a great danger to the governmental framework of the United States that it should be set aside, only to be used in times of extraordinary national emergency, when the risks it entails would be justified.

The second half of Article V is one of the most vague parts of the constitution, and there exists next to no legal precedent interpreting it. This has resulted in innumerable problems in any attempt to carry out the process that it describes. Chief among the unanswered constitutional questions is whether the states or Congress can limit a convention to a specific subject or amendment, a critical part of arguments in favor of an Article V Convention. Proponents of the plan such as the American Legislative Exchange Council (ALEC) and Citizens For Self-Governance have argued that either the states or Congress could enact rules restricting the scope of a convention, in order to prevent a so-called “runaway convention” in which delegates could modify other parts of the constitution.

Unfortunately, a wide range of constitutional scholars, from Harvard Law Professors and Democratic Solicitor Generals, to conservative Supreme Court Justice Antonin Scalia and the progressive Chief Justice Warren Burger all agree that neither Congress nor the states calling for a convention could limit its scope. In fact, in the 1787 Philadelphia convention, the only precedent we have, both the states and Congress (under the Articles of Confederation) placed firm restrictions on the powers of the convention and its delegates, restrictions that were utterly and completely ignored, resulting in a constitution that was far beyond what the states or Congress had intended.

In a modern day scenario, convention delegates, immune from any limits, just as their 18th century forebears were, could run rampant over the Bill of Rights and other essential protections of American democracy. The convention would not be limited to approving new amendments, but could in effect rewrite the entire US Constitution, or throw it out completely, replacing it with an entirely new governing document, just as Madison and the founding fathers did with the Articles of Confederation. Few Americans would have faith in our current politicians to serve as honorably as Washington or Hamilton.

In our media driven culture, the convention could become, as Chief Justice Burger wrote, “a free-for-all for special interest groups, television coverage, and press speculation.” Powerful corporations, such as the ones that fund groups like ALEC, could flood the elections that determine delegates with an unprecedented level of advertising money, unencumbered by any campaign finance laws, potentially leading to crony capitalism and corporate personhood being ensconced in the US Constitution. Conservative fears of socialist style reforms and a repeal of the 2nd amendment could be realized. Liberal fears of a greatly weakened government and massive entitlement cuts would be just as possible.

According to both the Constitution and the precedent of all of American history since the founding of the republic, a constitutional convention has the highest possible authority of any governmental or political body, and would be above the authority of the President, Congress, or the court system. Theoretically, the convention could even go as far as to declare a dictator or a state religion. There would be no limit on its power. Even the Constitutional requirement that 3/4ths of the states ratify the new constitution could be disregarded, just as the founding fathers ignored the mandate in the Articles of Confederation that any amendment be unanimously ratified by the states.

Despite the misleading and naïve arguments of groups pushing this constitutional procedure, convening an Article V Convention would put at risk all the political and civil freedoms we hold dear. Even if the worst case scenarios were never realized, the massive political firestorm that would no doubt accompany a convention could lead to greater voter disillusionment and an even more flawed government. While reforms of the US government are clearly called for, they should be carried out through the traditional Congressional amendment process, not through an unused and untested constitutional mechanism like a Constitutional Convention.

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