Did you know that the Constitution provides a means for the people, acting through their states, to propose constitutional amendments, without needing any support or participation from the U.S. Congress? Under Article V of the Constitution, if two-thirds of the states approve resolutions calling on Congress to hold an amendments convention, Congress has no choice but to do so.
This has never happened in our history, in part due to the difficulty of the amendment process: Not only must 34 states (two-thirds) call for a convention, but 38 states (three-fourths) must ratify any amendments proposed by the convention. A tall order, to be sure.
In addition, the disagreement over the desirability of an amendments convention of the states involves more than the typical Left/Right divide. On the Right, there is also opposition to Article V.
Conservative opponents of a convention of states offer two primary objections: First, a convention of states has been dismissed as a “long shot.” Second, were a convention of states under Article V actually called, it would result in the “mayhem” of a “runaway convention.”
These criticisms are raised by some who simultaneously agree that all three branches of the federal government have transgressed their constitutional authority. They agree that the Supreme Court has abandoned the meaning of the Constitution, especially its Interstate Commerce Clause, allowing for federal intrusions that would have made the Founders blanch. The U.S. Congress has allowed, even enabled, these judicial usurpations of its rightful authority. And the executive branch has flouted Congress’s authority through executive orders as well as through deciding which laws the administration will support and which it will not—despite the Constitution’s requirement that the president “take Care that the Laws be faithfully executed.”
As a result, our profligate federal government has not only burdened this generation with catastrophic debt, but also encumbered our children and grandchildren—with no end in sight.
It seems clear that the federal government is unable or unwilling to extricate our country from the abyss into which its power grabs have thrust us. What is left under the Constitution is the states’ power to employ Article V to call a convention to propose amendments to reverse our decline through reducing the size and reach of the federal government and restoring the powers granted to the people in their states by the Constitution.
The “long-shot” critique of a convention of states argues that it would waste precious time and resources pursuing an unrealizable goal. As noted, there is an historical basis for their skepticism. Despite being an element of the original Constitution, a convention of states has never occurred in American history, because of the enormous difficulty of getting 34 states to agree on anything.
Yes, a convention of states is a long shot. But the truth of this first critique undermines the second objection—that a convention of states would become a “runaway convention,” in which rogue delegates hijack the agenda, perhaps with the complicity of Congress, which, under the Constitution, calls the convention after state applications hit the target of 34.
The second critique capitalizes on what constitutional scholar Rob Natelson labels “popular mythology”—namely, that the Constitution, though enabling states to call a convention, provides little guidance about the process governing it. Hence, critics fear that the very Congress that is part of the problem will use its power over the convention process to prevent any problems from being solved, and perhaps even create new ones.
Natelson’s work demonstrates that there is a great deal of guidance regarding procedures at a convention of states. It is not the fraught, blank slate it is feared to be. But the most powerful rejoinder to the runaway convention prediction is the fact that, under the Constitution, it takes 38 states to approve any amendment, “rogue” or otherwise. That is to say, a mere 13 states can block any amendment. One is hard-pressed to believe that there are no longer thirteen states in the Union that would block any amendments but those called for by 34 states to rein in the federal government. To believe otherwise would be to conclude that we can no longer count on there being constitutional fidelity in even this small number of states. If this is true, America’s experiment in self-government has already failed.
If we are to prevent the failure of our experiment in self-government, a convention of states appears to be our last, best hope. But for this to happen, elements on the political Right need to be assured that the benefits of such an undertaking outweigh the risks.
Based on my research, the benefits do outweigh the risks, which is not to deny that there are risks.
In my next piece, I will elaborate on the reasons for hope in a convention of states.