“A Convention for Proposing Amendments...as Part of this Constitution”

A Publius Essay | 25 April 2007 | Publius

[Publius]

“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.”
– Article V of the Constitution of the United States

The Founding Fathers provided two methods to propose amendments to the Constitution.

• The Congressional Method requires both Houses of Congress to approve a proposed amendment by a two-thirds vote. For over two hundred years, Americans have chosen to use this particular method to amend the Constitution, but it is not the only method established in Article V.
• The Convention Method requires that the legislatures of two-thirds of the states apply for an Article V Convention. According to Hamilton, Madison and other Founders, along with several US Supreme Court decisions, Congress is then obliged to call a Convention for Proposing Amendments. The states would send delegates to the Convention who would in turn propose amendments directly, bypassing Congress.

The Framers also provided two options for ratifying amendments, and they authorized Congress to decide which option was appropriate. The Supreme Court has ruled that Congress is limited to choosing one of the two options.

• The Legislative Option requires the legislatures of three-fourths of the states to ratify a proposed amendment.
• The Ratifying Convention Option requires the ratifying conventions of three-fourths of the states to ratify a proposed amendment. This option has been used only twice in our history: once to ratify the Constitution itself, and once to ratify the 21st Amendment repealing Prohibition.

One thing is perfectly clear: Article V gives the states assembled in convention the same proposal rights as Congress – no more, no less. And no matter whether an amendment originates with Congress or a Convention for Proposing Amendments, it must be ratified by three-fourths of the states before it can become part of the Constitution.

The Framers’ Safety Valve

Fearing a tyrannical Congress would block the amendatory process, the Framers formulated Article V, wording it so as to fence off the Constitution from hostile or careless hands. They were careful to enumerate Three Forbidden Subjects:

1. Altering the arrangement known as slavery until 1808, a ban that has been lifted both by time and war.
2. Altering the arrangement of equal representation of the states in the Senate.
3. Writing a new constitution.

The last Forbidden Subject is implied, rather than explicit, like the first two. The Framers took great pains to avoid using the term “constitutional convention”. Instead, the Founding Document refers to a “Convention for proposing Amendments...as Part of this Constitution”. An Article V Convention is strictly limited to proposing amendments to the Constitution of 1787, and it is forbidden to compose a new constitution. No matter what amendments may be proposed, the Constitution must remain intact, else the actions of the Convention become unconstitutional. Unless Article V is amended first to allow it, a Convention for Proposing Amendments can never become a true constitutional convention, i.e. it can never write a new constitution. And neither can Congress.

How It Would Work

The Founding Document is silent about a Convention for Proposing Amendments, except for establishing its existence and the criterion of its call by Congress. In 1965, a commission of the American Bar Association laid out what could be divined about the Framers’ intent. Then in 1992, after the commotion over the unexpected ratification of the 27th Amendment, originally proposed in 1789, Congress passed a bill reforming its involvement in the amendatory process, to include regulating the petitions for a Convention for Proposing Amendments and regulating the Convention itself.

• Petitions from state legislatures asking Congress to call a Convention for Proposing Amendments would have a shelf life of 7 years before expiring. The petition would have to request a subject or subjects for the Convention to consider, or it could request a general revision of the Constitution of 1787 – but not a new constitution!
• If the legislatures of two-thirds of the states petition Congress for a convention, and if the petitions are “fresh” because they are all less than 7 years old, and if the wording of those petitions is in agreement as to the subject(s) the Convention is asked to consider, then Congress would call the Convention, i.e. set the time and place.
• Baker v. Carr (“One Man/One Vote”) would apply. Delegates would be elected by the people, not appointed by a governor or state legislature. The model for the Convention would be similar to the Electoral College, where each congressional district would elect one delegate, and two delegates would be elected at large by each state.
• The petitioning language used by the states to request a Convention for Proposing Amendments would define the purview of the Convention. The Convention would not be allowed to address any subject outside that language.
• Upon convening, the Vice President would preside until the Convention could elect its own officers and establish its own rules of order.
• During the Convention, the Supreme Court would be available to hear cases generated by the Convention without going through the usual appellate process.
• Amendment proposals would go through deliberation and vigorous debate as would any amendment proposed in Congress. The Convention would set the bar for approving an amendment proposal to pass it on to the states for ratification. This could be a simple majority, a two-thirds majority, or anything that the Convention chose.
• Once the Convention exhausts the language of its purview and passes one, more than one, or no amendment proposals to the states for ratification, the Convention would adjourn permanently, and the delegates would become ordinary citizens again.
• Congress would then submit the proposed amendments to the states for ratification by deciding whether they should use the Legislative Option or the Ratifying Convention Option.
• If Congress chooses the Ratifying Convention Option, each state would hold an election for delegates to its state ratifying convention, which would be apportioned according to population.
• Each state legislature (or state ratifying convention, if Congress so chose) would vote up or down on each proposed amendment. If three-fourths of the states ratified an amendment proposal, it would become part of the Constitution.

Who Represents America?

Article I, Section 6 of the Constitution prevents a sitting congressman or senator from taking a seat as a delegate at a Convention for Proposing Amendments unless he first resigns his seat in Congress. It is safe to say that few would be willing to give up the permanent power of Congress for the transitory power of an Article V Convention.

So who would be elected by the states? Yourself, your friends, and your neighbors. All you have to do is run for Convention Delegate. There would be no need for a party endorsement or a campaign war chest. Anyone who raised a vast sum of money or took campaign contributions from vested interests would immediately fall under suspicion. After all, an Article V Convention is about the Constitution, not pork, perks and personal power.

Anyone who wishes to run for Convention Delegate will have to know his Constitution. He will have to take a stand on the subject(s) the Convention is to consider, and he will have to be able to defend that position in public. He won’t be able to hedge, waffle or use weasel words. Most importantly, the candidate for Convention Delegate will have to be a person of integrity, respected in his community.

The conservative caricature of an Article V Convention is a disorderly mob of statists from Massachusetts, welfare recipients from New York, and New Agers and illegal aliens from California. The liberal caricature of a convention is a gaggle of sexually maladjusted theocrats from Mississippi, American Gothics from Indiana, Johnny Rebs from South Carolina and bearskin-clad mountain men from Alaska.

Of course, the Convention will be representative of America at that time and place. All facets of America will be there, and that is as it should be. At an Article V Convention, everyone will have an opportunity to make his case, and everyone will have to lay his cards on the table. It's even possible that the Convention will send no amendment proposals to the states or that the states themselves will choose not to ratify.

So why go through all this?

There has long been fear of a Convention for Proposing Amendments because Americans have never used that tool. To most people, this is uncharted territory. But the Framers and Congress have provided a roadmap. Once the Convention meets, does its business and adjourns, Americans will understand that the Convention is just another tool provided by the Framers. Congress and the political parties will be on notice that the People have found another way.

For that is the beauty of the Constitution of the United States. It is designed to be changed by the People, either through their national government or – should that government fail to satisfy their mandate – through a second system of amendment. The Framers bequeathed the People two methods of amendment so that the government would always be under the People’s control.

There is no reason to fear the Framers’ bequest.

[Political Junkie Too]

Think about that idea; -- could 'we the people' re-institute slavery?

Yes, we could. Would we? Never. The idea of requiring two-thirds of each chamber of Congress and three-fourths of all the state legislatures to comply is a sufficient hurdle to keep ideas like slavery from making it to the Constitution. Instead of slavery, ask about defense of marriage. If that successfully makes it to the Constitution via Article V conventions, would it be "constitutional?"

It does? I don't get that idea at all. Root is simply saying that even that major effort cannot justify infringing upon our basic rights.

My only knowledge of the subject was your quote. My first take on it was that Root, defending a brewer, was trying to invalidate the method that the amendment made it to the Constitution, thereby invalidating the amendment. My impression was that he was suggesting that circumventing the Congress was something to fear. To me, when Root says "You will have declared that two thirds of a quorum of... may enact any legislation they please...," he at first lays out the laborious path to enactment and then trivializes it with "any legislation they please." First, it's a sufficiently high hurdle that just "any legislation" is unlikely to pass it, and second, it's a rigorous enough process that it isn't likely to occur that frequently. That's why I said what I did, because it seemed to me that Root ultimately wanted to Court to reject the amendment by rejecting the path of its enactment, by suggesting that it was easier and more likely to happen for any odd legislation that the People wanted.

Given that the Constitution was designed as a limiting powers document, designed to protect our rights from gov't infringements; -- does it make any sense to let 'majority rule' amend away those rights?

First, I'd say that isn't just a majority, but a super-majority. Second, I'd say that majority rule is the basis of how the legislature works, so what's wrong with it here? Third, the Constitution is established by "We the People," so what's wrong with the People having a direct path to amending the Constitution? After all, it is a government by consent of the governed, and one way of reminding the government of that is to let the people also have a path to amending the Constitution. Now, if the people are going to do something stupid and harmful to their rights, that's why you need two-thirds of both chambers of Congress and three-fourths of the state legislatures to concur.

The question before the Court in 1920 was whether 'majority will' can amend the Constitution, depriving us of a basic right. -- Sadly, the Court refused to give us a clear answer.

I'm not sure I follow your original point. Are you against Article V conventions for amending the Constitution? Ultimately, the right to amend our governing document is also a basic right of the people.

-PJ

[Publius Valerius]

If you reread Article VI Section 2, I think that actually does forbid amending the supremacy of the Constitution ("... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.") To me, this means that you cannot amend the Constitution so that the Constitution is no longer the supreme law of the land, because that amendment would be a "thing in the Constitution" that would be in conflict with this section.

A fundamental premise of parliamentary government is that a parliament cannot bind a future parliament, so no matter how much you try to craft a document that purports to bind future parliaments (i.e., this part of the Constitution cannot be amended), the effort is simply non-binding on future parliaments.

This is interesting for a couple of reasons in our history. First, the Constitution explicitly states that the slavery issue cannot be amended until a future date--I think 1808, or something of the sort.

Second, in an effort to avert the impending civil war, a constitutional amendment was introduced in Congress (by an Ohio senator) that would have purportedly guaranteed--in perpetuity--that slavery would continue in the South. This was the Corwin Amendment, and if you read Lincoln's first inaugural address, he makes a passing reference to it. As I recall, it was ratified in a couple of Northern states, but before it really ever went anywhere the civil war started and the issue became moot.

But I think it is interesting that this amendment was supposed to have been unamendable, and it raises some novel issues. At the end of the day, though, I think the best response is that parliament can't bind future parliaments; thus, any "unamendable" stuff doesn't hold water

[Publius Valerius]

I can see the Supreme Court ruling on Constitutionality of laws passed by Congress or the States, but does the Supreme Court have the authority to strike down parts of the Constitution itself? I wouldn't think so.

This is an interesting debate that hasn't been fully explored. Much like my previous post, I would say that parliamentary supremacy rules, and the Supreme Court does not have the authority to strike down a constitutional amendment as unconstitutional.

You may be interested to know that a similar issue was recently (past 10 or 15 years) litigated in Nevada over school funding, I believe. That situation was slightly different because there the Court found that two separate provisions of the Nevada Constitution were contradictory, and eventually, as I recall, held part of the Nevada constitution unconstitutional.

[Billthedrill]

A big BTT. Bear in mind that the principal difficulty in calling for an Article V convention is that most liberals have never read the Constitution in the first place and are too busy poring over the Bill of Rights looking for that "Everybody Gets Free Stuff" amendment to care.

A wonderful essay, IMHO. Many thanks.

[Political Junkie Too]

In California, we routinely have Constitutionally allowed propositions by the people on the ballot, and then the courts routinely strike them down as unconstitutional. It's a game that we play here every two years.

-PJ

[tpaine]

.

The question before the Court in 1920 was whether 'majority will' can amend the Constitution, depriving us of a basic right. -- Sadly, the Court refused to give us a clear answer.

I'm not sure I follow your original point. Are you against Article V conventions for amending the Constitution?

Of course not. Root was arguing that [constitutionally speaking] such a convention cannot deprive us of inalienable basic rights, as our Declaration makes clear.

Ultimately, the right to amend our governing document is also a basic right of the people.

'We the people' do not have the power to enslave our neighbors.

Yes, we could. Would we? Never. The idea of requiring two-thirds of each chamber of Congress and three-fourths of all the state legislatures to comply is a sufficient hurdle to keep ideas like slavery from making it to the Constitution.

I doubt that. -- History shows us that 'super majorities' are capable of anything.

Given that the Constitution was designed as a limiting powers document, designed to protect our rights from gov't infringements; -- does it make any sense to let 'majority rule' amend away those rights?

First, I'd say that isn't just a majority, but a super-majority.
Second, I'd say that majority rule is the basis of how the legislature works, so what's wrong with it here?

'Whats wrong' is that it could be used to deprive people of inalienable rights, even enslave them; -- and you agree we have a 'right' to do so.

Third, the Constitution is established by "We the People," so what's wrong with the People having a direct path to amending the Constitution?

Nothing, as long as 'we the people' are limited by Article VI to honor our Constitution, as are ~all~ gov't officials. -- Apparently. you contend we are not. Read our Oath of Citizenship. -- All of us are obligated to protect and defend our Law of the Land.

After all, it is a government by consent of the governed, and one way of reminding the government of that is to let the people also have a path to amending the Constitution. Now, if the people are going to do something stupid and harmful to their rights, that's why you need two-thirds of both chambers of Congress and three-fourths of the state legislatures to concur.

Tell it to those who lost their lives to 'super majority' endorsed governments in the 20th century.

[Political Junkie Too]

Nothing, as long as 'we the people' are limited by Article VI to honor our Constitution, as are ~all~ gov't officials.

I think the answer to your question is there. Are delegates to a Constitutional Convention Constitutionally recognized officers under Article VI Section 3? Are electoral college delegates? If so, are they sworn in under Article VI Section 3?

-PJ

[Publius]

Ping to #67.

Aren't members of the Electoral College sworn in under Article VI, Section 3? I vaguely remember something like that. Would that also apply to delegates to an Article V Convention?

[tpaine]

--- the Constitution is established by "We the People," so what's wrong with the People having a direct path to amending the Constitution?

Nothing, as long as 'we the people' are limited by Article VI to honor our Constitution, as are ~all~ gov't officials.
-- Apparently. you contend we are not. Read our Oath of Citizenship. -- All of us are obligated to protect and defend our Law of the Land.

I think the answer to your question is there. Are delegates to a Constitutional Convention Constitutionally recognized officers under Article VI Section 3?

Of course, - they would be sworn officials of their respective States; -- are you contending otherwise?

Are electoral college delegates? If so, are they sworn in under Article VI Section 3?

Yep, as state officials, electors would be sworn as per Art VI.

in any case, all of us are obligated to protect and defend our Law of the Land. -- You agree?

[Political Junkie Too]

Of course, - they would be sworn officials of their respective States; -- are you contending otherwise?

No, I'm not. I'm saying that that oath should be enough to satisfy your argument that they would protect the Constitution.

in any case, all of us are obligated to protect and defend our Law of the Land. -- You agree?

In theory, yes, but I wonder where the source of "obligation" comes from. If you're just talking about obeying the law, then everyone who is a resident here has an obligation to live by the law as part of the bond of civil society. If you're talking about changing existing law, people should be free to suggest any change they wish, and then suffer the wrath of society if they are too radical in their ideas.

The oath is given to immigrants (sidebar: how does "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen" square with dual citizenship?). Are natural born citizens given an oath or do we just assume they will support and defend the Constitution as a part of their birthright?

So, I can foresee people trying to start a grass-roots campaign for an amendment that could be harmful to some, but if it gets that far, then the delegates to a convention who do take an oath have the obligation to stop it.

-PJ

[Congressman Billybob]

Interestingly enough, the answer to your question is no. That Article says it applies to "Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States...." So it covers everyone in executive and judicial offices, but it does not cover legislative officials outside the state legislatures.

This would exclude the occasional state or federal constitutional convention, and also the roughly 250,000 local and county officials. It is a matter of tradition, not constitutional requirement, that such elected officials use the same form of oath as all others.

Congressman Billybob

Latest article: "Gun Control, Carolina-Style"

[tpaine]

-- the right to amend our governing document is also a basic right of the people.

'We the people' do not have the power to enslave our neighbors.

Yes, we could. Would we? Never.
I'm saying that that oath [of office] should be enough to satisfy your argument that they would protect the Constitution.

That oath hasn't worked to date. -- Why do you think it would work at a Constitutional Convention? -- A 'runaway convention' passing amendments repugnant to our liberties, would be subject to the checks & balances in the original document.

In any case, all of us are obligated to protect and defend our Law of the Land. -- You agree?

In theory, yes, but I wonder where the source of "obligation" comes from.

We have the right, the ~duty~ to "alter or abolish" any form of government destructive to our liberties.

If you're just talking about obeying the law, then everyone who is a resident here has an obligation to live by the law as part of the bond of civil society. If you're talking about changing existing law, people should be free to suggest any change they wish, and then suffer the wrath of society if they are too radical in their ideas.

'Free to suggest' re-instituting slavery is a long way from passing an amendment to do so, -- on that we can agree.

The oath is given to immigrants. Are natural born citizens given an oath or do we just assume they will support and defend the Constitution as a part of their birthright?

Those who refuse to support & defend are free to renounce their citizenship at any time, last I looked.

So, I can foresee people trying to start a grass-roots campaign for an amendment that could be harmful to some, but if it gets that far, then the delegates to a convention who do take an oath have the obligation to stop it.

Indeed they do. -- Glad to see you renouncing your 'power' to enslave anyone.

[Political Junkie Too]

Glad to see you renouncing your 'power' to enslave anyone.

Now, now... I never claimed the power to enslave anyone.

Think about that idea; -- could 'we the people' re-institute slavery?

Yes, we could. Would we? Never.

What I hinted at earlier, and we drew out from our dialog, was that even the Article V Constitutional Convention has checks and balances to prevent inhumane or other extreme ideas from reaching the Constitution.

-PJ

[tpaine]

Aren't members of the Electoral College sworn in under Article VI, Section 3? I vaguely remember something like that. Would that also apply to delegates to an Article V Convention?
Publius

Billybob wrote:
Interestingly enough, the answer to your question is no. That Article says it applies to "Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States...." So it covers everyone in executive and judicial offices, but it does not cover legislative officials outside the state legislatures. This would exclude the occasional state or federal constitutional convention, and also the roughly 250,000 local and county officials. It is a matter of tradition, not constitutional requirement, that such elected officials use the same form of oath as all others.

Publius, we can see from the above opinion why our Republic is in such danger. -- 250,000 local and county officials do not need to honor our Constitution as the Law of the Land. -- Good grief.

[tpaine]

Title 18, U.S.C., Section 242 Deprivation of Rights Under Color of Law

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

[Congressman Billybob]

Your conclusion is absurd. First, I made it clear that state and local officials DO use the same oath, as a matter of tradition rather than requirement. And even if not, the idea that an oath, rather than education and respect, is what binds Americans to their Constitution is contrary to the understandings of all those who wrote and ratified the Constitution, and have sought to preserve it ever since.

Read my next column, “Raising the Edifice.” It is based on a just-discovered text by George Washington. You might learn something.

John / Billybob

[KrisKrinkle]

If a faction has the political wherewithall to attain its objectives through the Congressional Method, why would it use the Convention Method?

Under what circumstances would a faction have the political wherewithall to attain its objectives through the Convention Method when it does not have the political wherewithall to attain its objectives through the Congressional Method?

[tpaine]

Read post #75. — Is Title 18 “absurd”?

[Publius]

George Mason was one Framer who was adamant that the convention method be enumerated in Article V. Hamilton was unsure if it was necessary. What Mason believed was possible was that Congress might become so insular and tyrannical that it might block an amendment desired by the People. I'll give you an example.

We can all argue whether the 17th Amendment was a good idea or not. But at the turn of the century the Progessives made it a priority, and the people strongly agreed. The House agreed, but the Senate balked at changing the way it was elected. I've always seen this as a textbook example of what Mason was talking about.

The states began exercising their right under Article V to request a convention to address the issue of the popular election of senators. Had the Senate continued balking, a convention would have been called on the subject. But once the tally was one or two states away from a convention call, the Senate yielded to popular opinion and passed the amendment to the states of ratification. (I'm not going to argue the rightness or wrongness of that amendment here.)

Let me give you another more recent example. During the Reagan era, Congress was in no mood to entertain a balanced budget amendment, so the states began petitioning Congress for a convention to address the subject. The tally got within a state or two, but then the issue fizzled. Had it not fizzled, we would have witnessed the states taking control from Congress and addressing the issue directly via a convention.

Another example. I question whether an amendment extending the 14th Amendment to the unborn -- a human life amendment -- would be a good idea, but today you would have no chance of getting one through Congress. But the states through a convention? That might be more interesting.

Handling illegal immigration or the Kelo decision would also fall into this category. Do you see where I'm going with this?

[Political Junkie Too]

I can also see how the 17th amendment weakened the State's power to call for an Article V convention. Without having Senators on a state's leash, it's easier for the Senate to block the states than it would be prior to the 17th, since the Senators would fear state legislative reappointment power more than fickle and appeasable popular voting.

-PJ