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 one.
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 forcing a convention. The first time was in 1912, on direct popular election of Senators. Thirty-one of the then 48 states issued the call, one state short of the necessary two-thirds. Congress jumped in to propose the Seventeenth Amendment, which was swiftly ratified. The second was in the 1980s, on the need for a balanced budget amendment. Again, the states came close to two-thirds. But this time, although no amendment cleared Congress, the convention drive lost steam.
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 the 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, narrow, and identically worded as possible. Thanks to this safeguard, 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 cannot successfully 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 fulfills, and does not abuse, its ministerial role 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.
Questions
Question 1: Is the ‘substantially similar scope’ restriction (safeguard 3) judicially enforceable? No. Despite safeguards 6 and 7, which do recognize a role for the judiciary at later stages of the process, only Congress can make the initial, pivotal determination whether it has received a sufficient number of valid applications. If the Supreme Court could do that, then in effect the Court could call a convention.
Question 2: Why must state applications be substantially similar in scope? Why is scope even a factor? After all, the text of Article V only refers to ‘a Convention [of states] for proposing Amendments.’ It does not say anything about the scope or topic of the convention. The answer lies in the precedents. There has never been a multi-state convention that did not state a topic for discussion beforehand. The Framers knew this, and the burden of proof lies with those who think they were innovating on this aspect of the process, creating a pathway to blue-sky conventions. No, Congress is within its rights to hold states to that precedent and, as we’ve seen, it has an incentive to do so.
Question 3: Could Congress determine the convention’s rules and procedure? No. A convention of states has the authority to make its own rules. This gives it independence from outside forces, which is essential in any such gathering. If Congress could make the rules, it could sabotage the meeting by dictating how delegates are to be 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). The historical precedents, once again, show us the truth. There were at least 32 multi-state 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. Congress did not call the celebrated Philadelphia Convention of 1787, the states did. Congress formally blessed the project, at the request of the five states that participated in the earlier Annapolis Convention of 1786, but this was superfluous. It was the states who initiated and controlled the process then, and it is the states who would initiate and control the process now. 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 managed to adopt bad rules, such as voting by population rather than by state. Very 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. And now suppose the very worst-case scenario: a convention adopts bad rules and proposes a bad constitutional amendment. This is the only scenario that comes close to being a ‘runaway.’ It would still only take thirteen states (one quarter of the current total of fifty, plus one) to kill the amendment. (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.) Now, if we can’t rally one state in four to stop a bad idea, we might as well call it a wrap. But this scenario is so incredibly unlikely, it hardly rises to meriting our attention. And if the first Article V convention avoids it, it will never happen. The precedents will have been set. The choice here is easy. I’ll cheerfully take the imagined risks of a runaway convention over the real and palpable risks of today’s runaway government.
Question 4: Was the Washington Peace Conference of 1861 an Article V convention? No. It was a private meeting of the states. But it does offer 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 a constitutional amendment related to slavery) operated very much like an Article V convention would, and provides a good example of how to conduct such a convention. Incidentally, it did not ‘run away,’ despite proposals from some delegates to do so. It stayed on topic.
Question 5: What about the unlikely but theoretically possible instance in which three-fourths of the states already agree on a specific change and three-fourths of the states 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. I’m sorry, no matter how you look at it, a runaway convention that could subvert the Republic is a practical impossibility.
Question 6: How should a state application be worded, to be valid? This is more of a question for Congress. But as an example of an application that seems quite valid to me, here is boilerplate ‘convention call’ language drafted by the Convention of States Project and currently under consideration in a number of states:
The Legislature of the State of _____ requests 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.
(The reference to ’49’ states here strikes me as gratuitous — what if a 51st state joins the Union? — but I don’t think it’s fatal to the application, because it is not essential to it, legally. It’s surplusage.)
Glenn Beck certainly knows that using a convention as described in Article V does not open the actual Constitution and only proposes amendments. I don’t understand why he would say this.