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Convention to propose amendment to U.S. Constitution

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Title: Convention to propose amendment to U.S. Constitution  
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Subject: Article Five of the United States Constitution, State legislature (United States), Constitutional convention (political meeting)
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Convention to propose amendment to U.S. Constitution

A Convention to propose amendments to the United States Constitution, also called an Article V Convention, or Amendments Convention, is one of two alternative procedures for proposing amendments to the United States Constitution described in Article Five of the Constitution. The other method is a vote by two-thirds of each house of Congress.

In recent years some constitutional scholars have been arguing that state governments should call for such a convention.[1][2] They include Lawrence Lessig, Sanford Levinson, Larry Sabato, Jonathan Turley, and Mark Levin among others, and there are reports that such a proposal is gaining "traction."[1][3][4]

According to Article V, Congress must call for an amendment-proposing convention, “on the application of the Legislatures of two thirds of the several States”, and therefore 34 state legislatures would have to submit applications. Once an Article V Convention has proposed amendments, then each of those amendments would have to be ratified by three-fourths of the states (i.e. 38 states) in order to become part of the Constitution.

Congress has the power to choose between two methods of ratification: ratification by the state legislatures, or instead ratification by state conventions called for that purpose. In contrast to those separate state ratification conventions, a convention to propose amendments to the United States Constitution would be a single federal convention. While there have been calls for a second federal convention based on a single issue such as the Balanced Budget Amendment, it is not clear whether a convention summoned in this way would be legally bound to limit discussion to a single issue; law professor Michael Stokes Paulsen has suggested that such a convention would have the "power to propose anything it sees fit".[5] All 27 amendments to the Constitution have happened in a procedural sense by going through Congress and not through proposal by state legislatures.[5]

History

To guard against oppressive government of any kind, the authors of the United States Constitution sought to establish institutional checks and balances. In framing the Constitution as the fundamental embodiment of such safeguards, the Constitutional Convention assembled in Philadelphia in 1787,[6] at the invitation of the Continental Congress.[7] That is the last time a federal constitutional convention has convened in the United States.

Creation of the amendment process

One of the main reasons for the 1787 Convention was that the Articles of Confederation required the unanimous consent of all 13 states for the national government to take action. This system had proved unworkable, and the newly-written Constitution sought to address this problem.

The first proposal for a method of amending the Constitution offered in the Constitutional Convention, contained in the Virginia Plan, sought to circumvent the national legislature, stating that "the assent of the National Legislature ought not to be required."[8] In response, Alexander Hamilton privately circulated a proposal that gave the power to propose amendments to the national legislature, and the power to ratify the amendments to the states.[9]

After some debate, James Madison removed reference to the convention amendment process, giving the national legislature sole authority to propose amendments whenever it thought necessary or when two-thirds of the states applied to the national legislature.[10] Several delegates voiced opposition to the idea of the national legislature retaining sole power to propose constitutional amendments.[11] George Mason argued from the floor of the Convention that it "would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account." Mason added that, "no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive."[12] In response to these concerns, the Convention unanimously voted to add the language allowing states to apply to Congress for a convention to propose amendments to the Constitution.[11]

James Madison did not oppose reintroducing language permitting the convention amendment process, but expressed prescient concerns about the lack of detail in Article V regarding how the convention amendment process would work. Madison stated that "difficulties might arise as to the form" a convention would take.[13] The text of Article V referring to the convention amendment process reads: "The Congress, . . . on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing Amendments. . . ."

Attempts to call another Article V convention

Main article: List of state applications for an Article V Convention

Every state except Hawaii has applied for an Article V Convention at one time or another. The majority of such applications were made in the 20th century. While there is no official count of the number of applications, one private count puts the total number of applications at over 700.[14][15]

Even though the Article V Convention process has never been used to amend the Constitution, the number of states applying for a convention has nearly reached the required threshold several times. Congress has proposed amendments to the Constitution on several occasions, at least in part, because of the threat of an Article V Convention. Rather than risk such a convention taking control of the amendment process away from it, Congress acted pre-emptively to propose the amendments instead. At least four amendments (the Seventeenth, Twenty-First, Twenty-Second, and Twenty-Fifth Amendments) have been identified as being proposed by Congress at least partly in response to the threat of an Article V convention.[16]

There have been two nearly-successful attempts to amend the Constitution via an Article V Convention since the late 1960s. The first try was an attempt to propose an amendment that would overturn two Supreme Court decisions, Wesberry v. Sanders and Reynolds v. Sims, decisions that required states to adhere to the one man, one vote principle in drawing electoral districts for state and federal elections. The attempt fell only one state short of reaching the 34 needed to force Congress to call a convention in 1969, but ended by the death of its main promoter Senator Everett Dirksen. After this peak, several states rescinded their applications, and interest in the proposed amendment subsided.[17] The next nearly-successful attempt to call a convention was in the late 1970s and 1980s, in response to the ballooning federal deficit. States began applying to Congress for an Article V Convention to propose a balanced budget amendment. By 1983, the number of applications had reached 32, only two states short of the 34 needed to force such a convention.[18] Enthusiasm for the amendment subsided in response to fears that an Article V Convention could not be limited to a single subject and because Congress passed the Gramm-Rudman-Hollings Act, which required that the budget be balanced by 1991 (but that Act was overturned by the Supreme Court in 1986).[18]

Permissible scope of applications to Congress

A frequent question is whether applications from the states can omit to mention subject matter, and instead request an unlimited convention. Past practice suggests that separate unlimited applications submitted to Congress at different times are not allowed.[19] Article V itself calls for "the application of the legislatures" instead of calling for plural "applications".

States have requested that Congress convene an Article V convention to propose amendments on a variety of subjects. According to the National Archives, Congress has, however, never officially tabulated the applications, nor separated them by subject matter.[20] On at least one occasion though, the Congressional Record has included such a tabulation, which indicated that, as of 22 September 1981, thirty states had made a request for a balanced budget amendment.[21] In 1993, Professor Michael Paulsen and his research staff assembled a listing of all state applications to date, but neither Paulsen's list, nor any other, can be safely characterized as "complete" since there may very well be state applications that have been overlooked and/or forgotten.[22]

According to James Kenneth Rogers, the drafting history of Article V indicates that states may limit the subject matter of their applications, and that Congress has a duty to tally applications separately by subject matter.[11] Moreover, Rogers asserts that states may not make a general application without specifying the subject or subjects to be addressed by the convention.[23] Rogers points out that, during the drafting process, the Philadelphia Convention at one point adopted a version of Article V that gave power to Congress to propose amendments when two-thirds of both houses agreed, or to propose amendments without a congressional supermajority "on the application of two thirds of the Legislatures of the several states."[24] This draft version of Article V lacked any provision for a constitutional convention requested by the states, and instead included language almost identical to the final version of Article V but giving states the power to apply to Congress for amendments without any convention. The draft language suggests that states applying to Congress for amendments would have to say what sort of amendments they were applying for, because a general petition (that is, one not limited by subject matter) asking Congress to propose amendments would serve little purpose "beyond notifying Congress that two‐thirds of the States thought that some unknown changes to the Constitution were desirable."[23] Therefore, due to the similarity between the draft and final versions, Rogers contends that state applications to Congress must specify subject matter, and must be tallied individually by subject matter to determine whether the two-thirds threshold of state applications has been met.

A dissenting view has been expressed by Michael Stokes Paulsen, a professor at the University of St. Thomas School of Law. Paulsen has argued that state applications for an Article V convention limited to a particular subject matter are invalid and that only applications that include a call for an unrestricted convention are valid.[22] If Paulsen's criteria that state applications must not be limited to particular subject matter and that rescissions by states are valid, as of 1993 a total of forty-five states had pending applications meeting this criteria.[19] According to Paulsen, therefore, Congress has had a duty to call a convention for many years. The fact that Congress has not called such a convention, and that courts have rejected all attempts to force Congress to call a convention, has been cited as persuasive evidence that Paulsen's view is incorrect.[25]

Permissible scope of proposed amendments

Because no Article V convention has ever been convened, there are various questions about how such a convention would function in practice. One major question is whether the scope of the convention's subject matter could be limited.[11]

The consensus is that Congress probably does not have the power to limit a convention to a single amendment or a single subject, because the language of Article V leaves no discretion to Congress, merely stating that Congress "shall" call a convention when the proper number of state applications have been received. Comments made at the time the Constitution was adopted indicate that it was understood when the Constitution was drafted that Congress would have no discretion. In The Federalist, Alexander Hamilton stated that when the proper number of applications had been received, Congress was "obliged" to call a convention and that "nothing is left to the discretion of Congress."[26] James Madison also affirmed Hamilton's contention that Congress was obligated to call a convention when the requisite number of states requested it.[27] In the North Carolina debates about ratifying the Constitution, James Iredell, who subsequently became one of the founding members of the Supreme Court, stated that when two-thirds of states have applied to Congress for a convention, Congress is "under the necessity of convening one" and that they have "no option."[28]

By citing the Constitution's Necessary and Proper Clause, Congress has tried to enact a statute to regulate how an Article V convention would function. Sponsored by the late Senator Sam Ervin, such a bill passed the U.S. Senate unanimously in 1971 and again in 1973, but the proposed legislation remained bottled up in the Committee on the Judiciary in the U.S. House of Representatives and died both times. Opponents to congressional regulation of an Article V convention's operations argue that neither Article I nor Article V of the Constitution grants Congress this power, and that the Founders intended that Congress "have no option." While the text and history of Article V clearly indicated that Congress has no authority to enact such legislation, there has been no opportunity for Federal courts to decide whether Congress has such authority because such legislation has never been adopted by Congress.

While Congress likely has no authority to limit the scope of an Article V convention, the scholarly consensus is that states do have that power. Larry J. Sabato is one scholar who advanced that view.[29] Congress's duty to call a convention when requested by the states means that it must call the convention that the states requested. If the states, therefore, request a convention limited to a certain subject matter, then the convention that is called would likely need to be limited in the way the states requested.[30]

If states have the power to limit an Article V convention to a particular subject matter, and Congress only has power to call a convention but no further power to control or regulate it, then a potential concern becomes whether an Article V convention could become a "runaway convention" that attempts to exceed its scope. If a convention did attempt to exceed its scope, none of the amendments it proposed would become part of the constitution until three-fourths of the states ratified them, which is more states than are required to call a convention in the first place.[31] It is doubtful that an Article V convention would exceed its scope, in light of the United States' experience with state constitutional conventions; over 600 state constitutional conventions have been held to amend state constitutions, with little evidence that any of them have exceeded their scope.[32]

Ability of states to rescind applications to Congress

The legislatures of some states have adopted rescissions of their prior applications. It is not clear from the language of Article V whether a subsequent vote to rescind an application is permissible. As discussed above, however, if the purpose of Article V is to give state legislatures power over a recalcitrant Congress—and if state lawmakers may indeed limit their applications by specific subject matter—it is possible that federal courts would hold that rescissions of previous applications are likewise valid, in order to give more meaningful effect to the power which Article V confers upon state legislators.[33]

Supreme Court interpretations of Article V

While the Supreme Court has never definitively interpreted the meaning of Article V, it has, on four separate occasions, referred to the Article V convention process:

Dodge v. Woolsey, 59 U.S. 331 (1855): “[The people] have directed that amendments should be made representatively for them, by the Congress . . . ; or where the legislatures of two thirds of the several States shall call a convention for proposing amendments, which, in either case, become valid, to all intents and purposes, as a part of the constitution, when ratified. . . .”

Hawke v. Smith, 253 U.S. 221 (1920): “[Article V] makes provision for the proposal of amendments either by two-thirds of both houses of Congress or on application of the Legislatures of two-thirds of the states; thus securing deliberation and consideration before any change can be proposed.”

Dillon v. Gloss 256 U.S. 368 (1921): In discussing Congress's power to propose amendments, the Court affirmed that “[a] further mode of proposal—as yet never invoked—is provided, which is, that on the application of two thirds of the states Congress shall call a convention for the purpose.”

United States v. Sprague, 282 U.S. 716 (1931): “[A]rticle 5 is clear in statement and in meaning, contains no ambiguity and calls for no resort to rules of construction. . . . It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them.”

Because of the political question doctrine and the Court's ruling in the 1939 case of Coleman v. Miller (307 U.S. 433), it remains an open question whether federal courts could assert jurisdiction over a legal challenge to Congress, if Congress were to refuse to call a convention.

See also

Footnotes

Bibliography

Further reading

  • Klein, Philip. "Is it Time for a Convention?", American Spectator (October 2010).
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