The lack of precedent, extensive unknowns, and considerable risks of an Article V convention should bring sober pause to advocates of legitimate constitutional reform contemplating this avenue
WHAT IS A CONSTITUTIONAL CONVENTION?
To curb the unconstitutional growth of federal power, state legislators are being confronted with the proposed solution of a never before used provision in Article V of the U.S. Constitution. Article V requires Congress to call a convention for proposing amendments upon the applications of 2/3 of the state legislatures. Much disagreement surrounds the provision and there is no direct legal precedent to settle these disputes.
The plain language of Article V leaves open many questions such as: When and how is a convention to be convened? Must the applications of the requisite number of States be identical or ask for substantially the same amendment or merely deal with the same subject matter? Must the requisite number of petitions be contemporaneous with each other, substantially contemporaneous, or strung out over several years? Could a convention be limited to consideration of the amendment or the subject matter which it is called to consider?
These unanswered questions give rise to ongoing concerns regarding several aspects of a convention. The risks are not always apparent at first blush and as a result, some state legislatures haven’t properly considered the full implications of the application. Stanford Law School Professor, Gerald Gunther opined that:
“Between 1976 and 1979, about half of the state legislators adopted applications without any serious attention to the method they were using, in an atmosphere permeated with wholly unfounded assurances by those who lobbied for the convention route that a convention could easily and effectively be limited to a single issue.”
1. The Convention cannot be limited to a single proposed amendment and is likely to be a runaway.
“One of the most serious problems Article V proposes is a runaway convention. There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights.” Associate Justice Arthur Goldberg
“There is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention would make its own rules and set its own agenda.” Chief Justice Warren Berger
2. The Convention could fundamentally change our Constitution or replace it altogether.
“We have only one Precedent, the Convention in Philadelphia in 1787. It was summoned, “for the sole and express purpose of revising the Article of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein.” From the very beginning it did not feel confined by the call and gave us a totally new Constitution that completely replaced the Articles of Confederation. I see no reason to believe that a constitutional convention, 200 years later, could be more narrowly circumscribed.” Charles Alan Wright, School of Law, The University of Texas at Austin.
3. Selection of Delegates for the constitutional convention is undefined in the plain language of Article V.
“…the absence of any mechanism to ensure representative selection of delegates could put a runaway convention in the hands of single-issue groups whose self-interest may be contrary to our national well-being.” Associate Justice Arthur Goldberg
“At a minimum…the Federal Judiciary, including The Supreme Court, will have to resolve the inevitable disputes over which branch and level of government may be entrusted to decide each of the many questions left open by Article V.” Laurence H. Tribe, Professor of Constitutional Law, Harvard Law School
4. State Legislators do not have the ultimate power of ratification.
“The Fifth Article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the legislatures of three-fourths of the states, or conventions in a like number of states.” Hawke v. Smith, 253 U.S. 221 (1920)
“We oppose a Con Con because the subject matter cannot be controlled and we have no guarantee that we can win state ratification fights if changes to the Constitution are offered. We fear, instead that in today’s climate of radical socialism and American ignorance about the Constitution that this is the worst possible time in our nation’s history to start to mess with the greatest governing document of all time. We will continue to oppose any and all attempts to do that, no matter how noble the reason for the call. Our intention is to protect the Constitution.” – Tom DeWeese, American Policy Center