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Consideration of a Convention to Propose Amendments Under Article V of the U.S

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Consideration of a Convention to Propose Amendments Under Article V of the U.S LEGAL MEMORANDUM No. 174 | FEBRUARY 19, 2016 Consideration of a Convention to Propose Amendments Under Article V of the U.S. Constitution John G. Malcolm Abstract Under Article V of Constitution, Congress, upon application of two- Key Points thirds of the states, must call a convention for proposing amendments. Proponents argue that an Article V convention, completely bypassing n Under Article V of the Constitu- Congress, the President, the courts, and the federal bureaucracy, would tion, constitutional amendments give the states and the people a more direct role in determining how may be proposed by two-thirds of the House of Representatives much power the federal government should have and whether some of and the Senate or by a conven- its existing power should be returned to the states and the people. The tion called by Congress on the process specified in Article V raises many questions that require careful application of two-thirds of consideration: how such a convention would work, what types of amend- the states. ments it might produce, and whether some of those amendments would n The text of Article V provides a successfully rein in the federal government and reinvigorate federalism. limited role for Congress (calling With or without such a convention, however, it remains vitally important the convention), no role for the that we continue to maintain an overriding focus on holding Congress, Supreme Court, and no role for the President, and, by extension, federal agencies accountable for the de- the President. cisions they make today. n Article V was designed to strike a balance between those who any Americans worry about the ever-increasing size, scope, might wish to treat the Consti- Mand reach of the federal government. They point out that it tution as if it were a mere piece spends beyond its means and for the most part operates outside of of legislation that could be amended easily and often and the strictures of the Constitution. They also point to various rul- those who would wish to make it ings by the Supreme Court of the United States that have effectively virtually impossible to amend our changed the structure and character of the Constitution without founding charter regardless of formally changing the text and, in the process, have facilitated the the perceived need to do so. dramatic expansion of federal power at the expense of the states, the n Above all, Article V ensures 1 people, and civil society. This has been exacerbated by the dramatic through the ratification process expansion of the administrative state (facilitated in part by Con- that amendments have substan- gress’s excessive delegation of its own legislative power to executive tial support among the people by requiring ratification of the proposed amendment by three- This paper, in its entirety, can be found at http://report.heritage.org/lm174 fourths of the states before it The Heritage Foundation could take effect. 214 Massachusetts Avenue, NE Washington, DC 20002 (202) 546-4400 | heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress. LEGAL MEMORANDUM | NO. 174 FEBRUARY 19, 2016 branch agencies2), coupled with the extreme defer- Amending the Constitution ence that the Court has shown to those agencies,3 In 1833, in his Commentaries on the Constitution something that the Framers of the Constitution of the United States, Supreme Court Justice Joseph would likely have found unimaginable.4 Story stressed the importance of having a process to After more than a century of vast expansion of amend the nation’s charter: the federal government’s functions and the vest- ing of broad authority in large numbers of agen- It is obvious, that no human government can cies of a federal administrative state, there seems ever be perfect; and that it is impossible to fore- to be little room left for the principle of federalism see, or guard against all the exigencies, which that respects the traditional role of the states in our may, in different ages, require different adap- federal system and little meaning left to the Tenth tations and modifications of powers to suit the Amendment’s guarantee that “[t]he powers not del- various necessities of the people. A government, egated to the United States by the Constitution, nor forever changing and changeable, is, indeed, in prohibited by it to the States, are reserved to the a state bordering upon anarchy and confusion. States respectively, or to the people.” A government, which, in its own organization, A number of Americans view Congress as intran- provides no means of change, but assumes to sigent (especially when it comes to proposing consti- be fixed and unalterable, must, after a while, tutional amendments that would rein in its power to become wholly unsuited to the circumstances tax and spend without limit or to limit the reelection of the nation; and it will either degenerate into of incumbent Senators or Representatives) and the a despotism, or by the pressure of its inequali- Supreme Court as having strayed from the text of the ties bring on a revolution. It is wise, therefore, in Constitution. Many of them conclude that the Amer- every government, and especially in a republic, ican people need to go around Congress and con- to provide means for altering, and improving the vince state legislatures to initiate the process under fabric of government, as time and experience, or Article V of the Constitution, which forces Congress, the new phases of human affairs, may render upon application of two-thirds of the states, to call a proper, to promote the happiness and safety of convention for proposing amendments.5 The text of the people. The great principle to be sought is to Article V provides a limited role for Congress (call- make the changes practicable, but not too easy; ing the convention), no role for the Supreme Court, to secure due deliberation, and caution; and to and no role for the President.6 follow experience, rather than to open a way for Article V proponents argue that such structur- experiments, suggested by mere speculation or al problems, resulting in a form of federal tyranny, theory.7 can be remedied best (and perhaps only) through an Article V convention, which would give the states and Article V, which outlines the mechanism for the people a more direct role in determining just how amending the Constitution, provides two differ- much power the federal government should have and ent ways in which constitutional amendments may whether some of its existing power should be returned be proposed: (1) by two-thirds of the House of Rep- to the states and the people. Article V, they contend, resentatives and the Senate or (2) by a convention would enable the states to convene for the purpose called by Congress on the application of two-thirds of proposing and considering amendments among of the states. Specifically, Article V states that: themselves, completely bypassing Congress, the Pres- ident, the courts, and the federal bureaucracy. The Congress, whenever two thirds of both The process specified in Article V for a conven- Houses shall deem it necessary, shall propose tion to propose amendments raises many questions Amendments to this Constitution, or, on the that require careful consideration. Questions arise Application of the Legislatures of two thirds of concerning how such a convention would work, what the several States,8 shall call a Convention for types of amendments it might produce, and whether proposing Amendments, which, in either Case, some of the proposed amendments would success- shall be valid to all Intents and Purposes, as Part fully rein in the federal government and reinvigo- of this Constitution, when ratified by the Legis- rate federalism. latures of three fourths of the several States,9 or 2 LEGAL MEMORANDUM | NO. 174 FEBRUARY 19, 2016 by Conventions in three fourths thereof, as the equally enables the general and the State govern- one or the other Mode of Ratification may be pro- ments to originate the amendment of errors, as posed by the Congress …. they may be pointed out by the experience on one side, or on the other.18 The Constitution of the United States has been amended 27 times.10 A convention of the states In other words, Article V was designed to strike for proposing amendments has never been con- a balance by effecting a compromise between those vened. Thus far, all 27 amendments originated in who might wish to treat the Constitution as if it were Congress and were subsequently sent to the states a mere piece of legislation that could be amended for ratification. easily and often and those who would wish to make Over the years, many states have submitted it virtually impossible to amend our founding char- applications for Congress to call an Article V con- ter regardless of the circumstances and perceived vention on a variety of topics.11 Although an Article need to do so. Above all, Article V ensures through V constitutional convention12 has never been called, the ratification process that amendments have sub- the states have come close to amassing applications stantial support among the people by requiring from two-thirds of the states, and on those occa- ratification of the proposed amendment by three- sions, the mere threat of being forced to call a con- fourths of the states (38 at present) before it could vention appears to have prompted Congress to act. take effect. Article V was first introduced at the Constitu- n In 1912, for example, the states were one appli- tional Convention in Philadelphia on May 29, 1787, cation shy of forcing Congress to call a conven- as part of the Virginia Plan,19 which provided that tion to consider an amendment requiring the the “Articles of Union” should be amended “when- direct election of Senators.
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