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"A Convention for Proposing Amendments...as Part of This Constitution"
A Publius Essay | 27 March 2006 | Publius

Posted on 03/27/2006 7:58:11 PM PST by 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 left us two methods to propose amendments to the Constitution.

  1. 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.
  2. 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 left us two methods to ratify amendments, and they authorized Congress to decide which method was appropriate. The Supreme Court has ruled that Congress is limited to choosing one of the two methods.

  1. The Legislative Method requires the legislatures of three-fourths of the states to ratify a proposed amendment.
  2. The Ratifying Convention Method requires the ratifying conventions of three-fourths of the states to ratify a proposed amendment. The Ratifying Convention Method 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 amendment 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 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 consider, compose, or even discuss 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. But some things can be extrapolated from the Constitution.

  1. Delegates would be elected by the people, not appointed by a governor or state legislature. The sovereignty possessed by an Article V Convention is identical and equal to Congress’ as far as the amendatory process is concerned. As citizens are elected to Congress, so it must be for convention delegates.
  2. Delegates would be apportioned to the states on the basis of population according to the Supreme Court’s “one man/one vote” decision. One possible formula would elect a delegate from each congressional district and two from each state, thus reflecting the makeup of the Electoral College.
  3. An Article V Convention is the property of the states, and the language used by the states to request Congress to call a convention defines the purview of that convention. In its petitioning language, the states may ask for a convention to address one subject, a plethora of subjects, or even ask for a general convention to address any subject, i.e. a revision of the Constitution.
  4. Upon convening, a Convention for Proposing Amendments would elect its own officers and establish its own rules of order. Because an Article V Convention, during the brief period of its existence, possesses the same sovereignty as the other three branches of government, Congress would not have the right to regulate it or restrict its purview. There is nothing threatening here, because according to Article V, Congress possesses identical powers.
  5. Amendment proposals would go through deliberation and vigorous debate as would any amendment proposed in Congress. The convention would determine 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.
  6. Once all amendment proposals had been passed to the states for ratification or rejected, the convention would adjourn permanently, and the delegates would become ordinary citizens again.
  7. Congress would then submit the proposed amendments to the Several States by deciding whether the states should use the Legislative Method or Ratifying Convention Method of ratification.
  8. If Congress chooses the Ratifying Convention Method, each state would hold an election for delegates to its state ratifying convention, which would be apportioned according to population.
  9. 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.

The Practical Side of a Convention for Proposing Amendments

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.

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 express strong positions on possible amendment proposals and be able to defend those positions in public. He can’t hedge, waffle or use weasel words. Before the election, voters are sure to ask the candidate to submit his favorite amendment proposals in writing, which is the best way to avoid the slippery language of politics.

Most importantly, the candidate for Convention Delegate will have to be a person of integrity, respected in his community. And that eliminates most careerists of the current political class.

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 socially maladjusted individualists from Arizona, American Gothics from Indiana, Christers from Kansas, Johnny Rebs from South Carolina, and bearskin-clad mountain men from Alaska.

And to 49 states, the name of Texas conjures up the image of sharp businessmen skinning the other delegates out of their eye teeth.

They will all 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.

Here is a possible selection of things that one could expect at a convention.

  1. A delegate from New York will introduce an amendment to repeal the 2nd Amendment.
  2. A delegate from Georgia will counter with an amendment to remove the Militia Clause from the same amendment.
  3. A delegate from North Carolina will introduce an amendment to extend the 14th Amendment to the unborn.
  4. A delegate from New Jersey will counter with an amendment to legalize abortion on demand.
  5. Hawaii will introduce an amendment to abolish the death penalty.
  6. Oregon will revive the Equal Rights Amendment.
  7. Maryland will attempt to give the District of Columbia statehood.
  8. Illinois will introduce an amendment creating an explicit right to privacy.
  9. Virginia will attempt to ban flag burning.
  10. Alabama will try to ban unfunded mandates.
  11. Utah will attempt to restrict executive orders.
  12. Florida will try to ban asset forfeiture.
  13. South Carolina will attempt to codify a state’s right to secede.
  14. Delegates will introduce amendments to impose term limits on members of Congress, require a balanced budget, make treaties subservient to the Constitution, change or abolish the Electoral College, and repeal the 16th and 17th Amendments.

But it’s a safe bet that only congressional term limits, a balanced budget, repeal of the income tax, a fix to the border problem, and one or more possible solutions to the problem of the Electoral College will get out of convention and be sent to the states for ratification.

And it's possible that none of the proposed amendments will receive the three-fourths ratification necessary to add them to the Constitution!

So why go through all this?

Because we as Americans need to know that our system works for us. Recent events have placed doubts in many minds, and there are those among us who would argue that the system does not work anymore and needs to be changed.

Perhaps.

But 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 us two methods of amendment so that our government and its actions will always be under our control, not the government’s.

Perhaps it’s time for the American people to show that government who’s in charge.


TOPICS: Constitution/Conservatism; Free Republic
KEYWORDS: articlev; constitution; convention
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To: Congressman Billybob
Thanks, I'll see if I can check that out. But looking at the language of Article V, it doesn't appear on the face of it that anyone has the power to limit anything. Someone else in the thread mentioned it as a fundamental of law that an agent can't exceed the mandate given by the principal, and I agree with that. Unfortunately, it appears with regard to conventions that the "principal" is not the states, nor Congress, but the people themselves. But I'm open to arguments to the contrary.
41 posted on 04/03/2006 7:08:29 PM PDT by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

it is unconstitutional for congress to attempt to limit in any way an article v convention.

i would like to direct your attention to a federal suit dealing with the issue that this thread is concerned with, http://www.cc2.org

the site has links to the suit titled Walker v. Members of Congress (05-35023 U.S. Ninth Circuit Court). the evidence in this suit shows, based on the congressional record, that there are 567 state applications for a convention and congress via Laches is ignoring those applications and failing to carry out its constitutional obligation and issue the call to the states.

as to the graphic above in this thread, i consider it not only a scare tactic, but invalid since, of the 120,000,000 votes cast in the last presidential election, roughly a third were cast on electronic voting machines, the source code of which was kept in the hands of private corporations; and exit polls, which for over a hundred years have been used to certify elections, were, for the first time ever, flipped. so much the red you see in that graphic is actually manufactured.

for anyone interested please do visit the link as this suit is actually the only thing left that has any chance of reframing the political discourse, of altering Politics As Usual.


42 posted on 05/14/2006 1:35:28 PM PDT by john de herrera
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To: Publius
There seem to be some errors in your essay.

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.


I find no evidence that Congress did so. Can you provide a citation? The Judiciary Committee did some work in this area, but nothing was passed by Congress.


Article I Section 6 only prevents United States officeholders from attending conventions without first resigning their current officers.

Article I Section 6 does not say anything of the sort.
43 posted on 03/27/2010 2:38:24 PM PDT by bitusmeus (Errors in your essay)
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