Article V Conventions: Pros and Cons

The American Spectator magazine has a balanced article, by Philip Klein entitled, “Is It Time for a Convention?,” about the pros and cons of calls for an Article V amendments convention. It includes this:

AT THE TIME of the founding, the ability of the states to call a convention to propose amendments was seen as a way to prevent the federal government from becoming too expansive. In essay No. 85 of the Federalist Papers, Alexander Hamilton cited the states’ convention option in his response to critics who feared that Congress would never allow any amendments limiting its power. The Constitution orders that “The Congress shall call a convention” if two-thirds of states demand one, he pointed out, and thus whether to call a convention isn’t up to the federal government. “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority,” he predicted.

Yet as time went on, people came to see a convention as more nefarious, forming misconceptions about what it might mean, according to new research by Robert Natelson, who recently left his post as a law professor at the University of Montana to join the Independence Institute. Those misconceptions, Natelson says, start with the very name of the proceeding.

“It is not a constitutional convention,” Natelson, who has written two forthcoming papers on the subject, told TAS. “Nobody at the time it was drafted ever called it a constitutional convention. It started to get that name only in the 20th century, as far as I can determine, when that term was applied to it by some people who were opposed to an Article V convention, because they opposed the proposed amendments.”

The Constitution itself refers to a “convention for proposing amendments.”

“It was not until the 1960s, when several conservative groups were seeking a convention to propose amendments in order to reverse some of the liberal Supreme Court decisions, that liberal scholars and activists, like Charles Black of Yale Law School, or Theodore Sorensen, the Kennedy speechwriter, basically made up this idea that what you’re doing is you’re creating a big unlimited constitutional convention that could become a circus,” he said.

Indeed, one reason for conservative suspicions is that liberals themselves have proposed a constitutional convention in order to make it easier to realize leftist policy goals. In 2006, for instance, University of Texas law professor Sanford Levinson wrote a well-received book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). He argued for a convention in which the entire founding document is fair game.

But according to Natelson, there is a difference. While a constitutional convention is called to rewrite the Constitution, an “amendments convention” or “Article V convention” is tailored to a narrow purpose.

“The Founders believed that this method would be used more than has probably been used,” he said. “It was seen precisely as a way of getting constitutional change that an abusive or corrupt Congress would not itself authorize.… To the extent that many people believe today that a Congress is abusing or exceeding its powers, this is precisely the situation that the Founders crafted this provision in the Constitution to serve.”

Critics of the idea contend that once the convention is called, there would be no way to limit its scope. But Natelson argued that there are a number of built-in checks to prevent that from happening.

“The convention is bound by the nature of the call,” Natelson said. “So if it’s been told to propose an amendment forbidding the government from being involved in health care, that is the only issue it may address.”
In Federalist No. 85, Hamilton wrote that “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. . . . The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.” Currently, it would take 34 states to call a convention, and 38 states to ratify an amendment.

Even if a convention passed non-germane amendments, Congress would not even be permitted to submit them to the states for ratification if they went beyond the topic in the initial petitions for a convention. And courts would have to disallow them even if Congress did.

Furthermore, there’s the political check, because if delegates were sent to the convention to address one issue and began to do something completely different, it would make the public back home “furious,” Natelson argued.
And ultimately, any proposed amendment would have to be ratified by three-fourths of state legislatures to alter the founding document.

But the article also presents several sources who object to calling for an amendments convention. It even discusses the Repeal Amendment!

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