by
Nick Dranias
Director - Center for Constitutional Government
Attorney
Goldwater Institute | www.GoldwaterInstitute.org

 

Article V of the U.S. Constitution gives state legislatures the power to initiate constitutional amendments through a convention of the states. It was designed by the Founders to ensure that the states held the ultimate check on the federal government—the power to directly curtail its power through constitutional amendments. Recognizing that the federal debt is out of control and unsustainable, for example, North Dakota and Louisiana have already invoked Article V to call a convention for considering the National Debt Relief Amendment—a constitutional amendment that would require any increase in the national debt to be approved by a majority of state legislatures.

 

Nevertheless, resistance on the Right is meeting the Article V movement as it surges in state legislatures across the country. The fear is that if states use their power to initiate constitutional amendments, somehow a runaway “constitutional convention” would result. There are essentially four reasons why that fear is not reasonable and should be rejected.

 

First of all, there is no authority for a “constitutional convention” in Article V, only a “convention for proposing amendments.” The power wielded by the convention contemplated in Article V is no greater than that of Congress. This understanding is apparent from the text of Article V, which grants both Congress and state legislatures the power to initiate constitutional amendments in the same provision. It is further supported by the fact that the original constitutional convention debates on September 15, 1787 reveal that the delegates rejected unanimously replacing Article V’s current language with substitute text calling for a general convention with no ratification requirement. And it is confirmed by Federalist No. 85, which contrasts the Article V process with calling for a second constitutional convention, arguing the latter was unnecessary because the former gave the states a more targeted means of restraining the federal government.

 

Secondly, Article V is no more vague than any other provision of the Constitution. Its vagueness does not invite wide open interpretation, it invites recourse to history, custom and practice. Such recourse reveals that states did and were meant to initiate and control interstate conventions of all types, including an Article V convention.

 

Thirdly, if invoking Article V somehow resulted in an entirely new constitution being adopted by the entire country without ratification, then such a political movement would be determinative of our country’s future regardless of the Article V process and could happen at any time, just as a revolution with enough support could happen at any time. That risk is totally independent from the use of Article V.

 

Fourthly, and finally, if one fears a runaway convention, just look to business as usual. Congress is a standing constitutional convention. The same is true with respect to the other branches of government most of the time. There is no added risk from states using Article V; doing so would only invite political change that is closer to the states and the people, which is essential to decentralize power and avoid tyranny.

 

At bottom, fear of a runaway convention should be replaced with resolve to use the check and balance on federal power afforded by Article V.  Stalwarts of state sovereignty on the Right must join the Article V movement before it is too late.

 

Link to Article V resources, http://goldwaterinstitute.org/articlev

Links to Report of Proceedings on September 15, 1787 in Farrand’s (1911), at 503-05 http://files.libertyfund.org/files/1786/Farrand_0544-02_EBk_v5.pdf

Link to Report of Proceedings on September 15, 1787 in Elliot’s Debates (1905), at 356-58, http://files.libertyfund.org/files/1905/Elliot_1314-01_EBk_v5.pdf

Link to Federalist No. 85, http://www.constitution.org/fed/federa85.htm