[St_Thomas_Aquinas]

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.

I don't see any congressional choke points.

[Publius]

This is the usual pedantic boilerplate I append to these threads for those people who don't understand the process. It parses the words of Article V.

BEGIN

The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.

Proposal:

There are two ways to propose an amendment to the Constitution.

• The Congressional Method requires the House and Senate to pass an amendment by a two-thirds majority.
• The Amendments Convention Method requires the legislatures of two-thirds of the states to apply to Congress to call a Convention for Proposing Amendments. The states may request a single-subject convention or a general convention open to all subjects. Once the two-thirds threshold is reached, Congress is required to set a time and place for the convention.

Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.

Disposal:

Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:

• State Legislature Method, or the
• State Ratifying Convention Method.

The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.

Ratification:

Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.

Forbidden Subjects:

Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.

Explicitly forbidden:

• No amendment may be added to the Constitution concerning slavery or capitation taxes until 1808. We’re past that deadline.
• No amendment may be added to the Constitution to change the principle of equal representation in the Senate unless every state deprived of that right approves. If California wants five senators, every state must have five senators. To permit violation of this principle, every state would have to ratify the amendment, not just three-fourths.

Implicitly forbidden:

• The Constitution of 1787 may not be abrogated and replaced with a new document. Article V only authorizes “a convention for proposing amendments to this Constitution”; therefore, the Constitution of 1787 is locked in place forever. Congress and an Amendments Convention have exactly the same Proposal power; therefore, neither Congress nor an Amendments Convention can start over. Both bodies can only propose amendments. To permit the drafting of a new constitution, this provision in Article V would first have to be repealed; it would be a two-step process.

I have two reference works for those interested.

The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.

Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers

The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.

Report of the ABA Special Constitutional Convention Study Committee

END

One choke point is in the Proposal phase. I'm not going to go into the debate as whether the states are required to name a subject in their applications for a convention or not. Congressional practice for the past 200+ years is that they do. But we'll let that lie.

Congress is the judge as to subject and timeliness of applications from the states. Congress has never officially enacted these standards into law, and the ABA Report has said plainly that Congress should do so. The reason Congress doesn't enact these two standards into law, but treats them as unwritten precedent, is that Congress doesn't want the states to have a handle for standing in a court battle. The process is arbitrary, and because of that, Congress can come up with excuses to choke off a convention. Congress did that in 1913, but it found a way to do it legally. That's the long story of the 17th Amendment told elsewhere.

The second choke point is in the Disposal phase. When presented with an amendment proposal, Congress must decide whether the states will ratify by state legislatures or state ratifying conventions. Congress can't simply refuse to act. But the key here is whether the amendment has been proposed by a valid process. In the case of an Amendments Convention, if Congress chooses to interfere with the process and the Supreme Court agrees, then a convention operating outside these rules could be considered invalid by Congress. Congress would be within its rights to ignore the work of a convention it considered an outlaw convention.

There was a potential chock point in the Ratification process, but a federal district court in Idaho closed that off in 1982 when the ERA crashed and burned. Congress can't go around and arbitrarily change its own window for ratification.