A ‘Runaway’ Convention Is a Practical Impossibility

Contrary to popular myth, a convention of states is safe.

Fears that an Article V convention of the states— sometimes incorrectly called a ‘constitutional convention’— could turn into a ‘runaway’ convention, and thus possibly rewrite or subvert the Constitution, are misplaced.

A ‘runaway’ convention is a practical impossibility.

Article V of the Constitution is devised like an elevator with really good safety brakes. Even if someone tried to make it fail, it wouldn’t.

If an Article V convention, which can only propose amendments, not ratify them, were to slip its leash with respect to subject or scope, its work-product could very easily be quashed, thanks to numerous safeguards built into the Constitution, the most important of which is that proposed amendments require the approval of three-fourths of the states— an extremely high bar.

That bar, indeed, is sufficient of itself to prevent a ‘runaway’ convention from changing our form of government. But as we shall see, it is not the only protection built into Article V. There are many others.

For the reader’s convenience, here is the actual text of Article V. Note that it provides for two rather different methods of proposal, and two slightly different methods of ratification:

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, 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 or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. [Emphasis added.]

As this language makes clear, in the United States only two public entities may formally propose a constitutional amendment: either Congress or a special convention of the states, and neither of these entities can ratify an amendment. A convention of the states for proposing amendments has no power to amend the Constitution, let alone rewrite it.

Again, this fact is by itself a complete safeguard against the danger of a ‘runaway convention’ subverting the Constitution. And again, it’s not the only one.

Since the Constitution was formally ratified on June 21, 1788, no Article V convention of states has ever been convened, although many states have called for one, on various subjects. Twice the states have come close to reaching the necessary two-thirds majority, which would force a convention. The first time was in 1912, on direct popular election of Senators. The second was in the 1980s, on the need for a balanced budget amendment. In both cases, the states came within one or two states of achieving the necessary two-thirds, whereupon Congress chose to take action and the convention drive stopped.

This history suggests that the states will only force a convention on a very rare and important occasion, and that pushing for a convention is also an effective way for the states to prompt a recalcitrant Congress to act on a matter of national concern.

Why does the convention route even exist? It’s a bypass option, added during the Philadelphia Convention of 1787. It provides for the rare case in which an amendment is needed but Congress cannot agree on language, or (perhaps more likely) Congress itself has become part of the problem and is simply unwilling to curb its own powers. The Founders were smart enough to foresee that the Congress they were establishing could never be safely entrusted with a monopoly on the power to propose amendments. The convention route provides the needed failsafe.

Those who fear a ‘runaway’ convention of the states never seem to notice that Congress itself is, technically speaking, a continuously sitting “constitutional convention,” able at any time to “hijack” the Constitution. Yet it never has. Why would a convention of states be any more dangerous? The critics don’t have a good answer to this, except to assert that the Philadelphia Convention of 1787 was itself a runaway convention. But this is a myth, one that has been ably laid to rest by constitutional scholar Michael Farris.

In total, there are at least nine safeguards built into Article V, which, I hope you’ll agree, would frustrate even the slightest possibility of a constitutional hijacking:

Safeguard 1: A convention has no power to ratify. It can only propose.

Safeguard 2: A convention can only be convened by Congress, after two-thirds of the state legislatures have validly called for a convention.

Safeguard 3: In their resolutions applying for a convention, state legislatures must state the purpose for which they seek it, and all of the applications must be on substantially the same subject. It is Congress that gets to determine whether a sufficient number of states has issued a valid call on substantially the same subject. The legislatures that call for the convention determine the scope. Congress merely reports that scope to all of the states, once the two-thirds requirement has been reached. Since both Congress and the states are naturally jealous of their rights and powers, this arrangement gives Congress an incentive to be persnickety about what constitutes a valid call on a particular subject, and gives the states an incentive to keep their calls as specific, narrowly framed, and identical in their wording as possible. An open-ended, ‘blue sky’ convention can’t happen.

Safeguard 4: A convention can only propose amendments on the subject or subjects for which it was convened. Originalist legal scholars agree proposals falling outside this scope are to be treated as nonexistent, legally speaking. And that’s not just a matter of opinion: Article V’s wording ensures they will be so treated, as we see in the next two safeguards.

Safeguard 5: An amendment proposed in an Article V convention can only be ratified after being forwarded by Congress back to the states. States cannot act on ratification until receiving a proposed amendment from Congress. Thus, Congress serves as a checkpoint against amendments that fall outside the scope of the convention’s call.

Safeguard 6: The federal judiciary may forestall the ratification of a proposed amendment that falls outside the scope of the convention’s call. This is a backstop to Congress’s similar power. It is necessary to ensure the states do not abuse their right to propose amendments by way of an Article V convention.

Safeguard 7: The federal judiciary may force Congress to forward any validly proposed amendment to the state legislatures for ratification. This power is necessary to ensure Congress doesn’t abuse its ministerial duties under Article V.

Safeguard 8: A proposed amendment cannot become part of the Constitution until three-fourths of the state legislatures have voted to ratify it. Any amendment popular enough to command the assent of three-fourths of the states is not likely to be dangerous either to the states or to their Union.

So much for a ‘runaway’ convention.

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Addendum 1: Today, some skeptics of a convention fear that it will be structured to ‘run away’ from the outset, via bad rules of procedure imposed by Congress, such as rules that try to dictate how delegates are selected, or whether they need a super-majority or a simple majority to act, or how their votes are to be apportioned, for example, by giving some states more votes than others. These fears are historically unfounded. A convention of states will make its own rules, and thus have needed independence from Congress and other outside forces. The states, not Congress, will control the convention. The historical precedents for multi-state conventions are numerous and well-documented. There were at least 32 such conventions in the seventeenth, eighteenth, and nineteenth centuries. In every case, the convention set its own rules. In every case, voting was apportioned by state (‘one vote, one state’). In every case, delegates operated under instructions from their state governments, not some ‘higher’ authority. In every case, resolutions were decided by simple rather than super majority (although I am not sure whether requiring a super-majority is a bad idea, per se). All of these precedents were followed at Philadelphia. Even a reading of Article V will reveal that Congress’s role in the convention process is purely ministerial. It has no substantive duties. Congress tabulates the calls for a convention, and when two-thirds have issued a valid call, Article V directs that Congress ‘shall’ convene the convention. This means announcing the date and location, and nothing more. As I’ve said, we know from the historical precedents that the rules of the convention are determined by the delegates of the states, and that the votes are apportioned by state (one vote per state). Congress did not call the celebrated Philadelphia Convention of 1787. The states did. Congress blessed the project, at the request of the five states that participated in the earlier Annapolis Convention of 1786. It was the states who initiated and controlled that process, and it is the states who would initiate and control the process today. Now, suppose a convention were convened but failed to agree to a set of procedural rules for itself. The worst that would happen is that it would grind to a halt and no amendments would be proposed. Or suppose a convention somehow manages to adopt bad rules, such as voting by population rather than by state. Most likely, a large minority of delegates would walk out in protest, possibly impeding the convention’s ability to come to agreement, and in any case casting a pall over its work-product. And now suppose the very worst-case scenario of all: a convention adopts bad rules and goes on to propose one or more bad constitutional amendments. This is the only scenario that comes close to being a true ‘runaway’ convention. It would still only take thirteen states (one quarter of the current total of 50 states, plus one) to kill the amendment or amendments. (And if you think about it, it would only take one house of the state legislature in thirteen states, and, depending on the rules of the particular legislature, less than a majority of that one house.) If we can’t rally one state out of every four to stop a bad idea, we might as well give up all hope. And let’s remember: thanks to the historical precedents, the negative scenario I’ve just outlined is extremely unlikely. And if it doesn’t come to pass during the first Article V convention, it will never do so. The precedents will have been set. Personally, I think the choice here is quite easy: I’ll cheerfully take the risks of a ‘runaway convention’ over the risks of today’s runaway government.

Addendum 2: The Washington Peace Conference of 1861 offers insight into how an Article V convention of states would actually be conducted. That famous assemblage, which addressed the secession crisis on the eve of the Civil War and proposed an amendment related to slavery, was not, legally speaking, an Article V convention. It was basically a private meeting of the states. But the Washington Peace Conference operated very much like an Article V convention would do, and so provides an example of how to conduct future conventions. Incidentally, the Washington Peace Conference did not ‘run away,’ despite proposals from some delegates to do so. It stayed on topic.

Addendum 3: What about the unlikely but theoretically possible instance in which three-fourths of the states already agree on a specific change and three-fourths also decide to use a convention to bypass Congress? Would the ratification step then become, in effect, a mere formality? Yes. But so what? The three-fourths bar provides a very high level of security. And of course all the other safeguards would also still apply. No matter how you look at it, a runaway convention, that could subvert the Republic, is a practical impossibility.

Addendum 4: Here is boilerplate ‘convention call’ language, drafted by the Convention of States Project, and current under consideration in a number of states:

​The Legislature of the State of ________ request​s that​ the United States Congress call a convention of the states to propose amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office of federal government officials; and the Legislature of the State of ________ urges​ the legislatures of the other 49 states to request that Congress call a convention of the states​ for this purpose​. 

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