Article V Convention: Can It be Controlled?

Author: Matt Huffman, Associate Member, University of Cincinnati Law Review

Article V of the United States Constitution provides two methods to amend the Constitution. Under the traditional method, Congress can propose amendments once two-thirds of both houses of Congress approve the proposal. The second method, known as an “Article V Convention,” has never been used. Article V allows state legislatures to call a Convention to propose amendments if two-thirds of the States (thirty-four) apply for such a Convention. In recent years, some state legislatures have called for an Article V Convention, primarily to propose a balanced budget amendment. Two groups oppose the amendment: (1) those opposed to a balanced budget amendment and (2) those concerned with the procedure of the Convention. This article discusses the unsettled procedure for calling and conducting an Article V Convention.

Because an Article V Convention has never been held, opinions differ on how the Convention would operate. Some scholars worry about a “runaway convention” that would exceed the intended scope of the Convention and radically alter the Constitution.[1],[2] Although an Article V Convention has never been used, there have been a significant number of applications for such a Convention in the past.[3] Given the recent wave of states calling for the adoption of a balanced budget amendment by way of an Article V Convention, it is possible that the procedure for the Convention will need to be decided in the near future. This article also analyzes the extent to which the states or Congress could limit the scope of an Article V Convention in order to prevent a “runaway convention.”

The States vs. Congress: Who Has the Power?

Article V provides, “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 . . .”[4] Thus, Article V provides a way for Congress and the states to propose amendments and amend the Constitution if the proposal is ratified by three-fourths of the states.

Authorizing Congress to control an Article V Convention would extinguish any threat of a runaway convention. However, given the literal text and context of Article V, it would be improper to give complete control of the Convention to Congress. The word “shall” in Article V demonstrates that Congress is obligated to call a Convention upon petition by the requisite number of states. The Framers clearly intended to limit Congressional discretion and to protect the states’ interests by explicitly permitting them to call a Convention to amend the Constitution. If Congress were to control the Convention, it could prevent the introduction of amendments it might dislike. Providing Congress with authority to control Article V Conventions called by two-thirds of state legislatures would render the Article V language meaningless. Congress has its own path by which to amend the Constitution; therefore, it would be illogical to grant Congress a second path to do so or allow it essentially to usurp the states’ power in this regard.[5] Thus, in light of Article V’s own language, the Framers must not have intended to authorize Congress to limit the scope of an Article V Convention and it should not be allowed to do so.

Can States Limit the Scope of an Article V Convention?

Assuming Congress cannot limit the scope of an Article V Convention called by state legislatures, debate still exists regarding whether the states have this power. Article V provides no guidance regarding what power the states have beyond obligating Congress to “call a Convention for proposing Amendments.” Some scholars argue that the text of Article V bars the states from limiting the Convention to a specific issue or amendment.[6] The argument is that the language, “Congress . . . shall call a Convention for proposing Amendments” (emphasis added), indicates that an “Article V Convention has the power to consider various issues and to submit various amendments.”[7] Further, scholars suggest that Article V does not allow states to apply for an amendment, but rather authorizes states to apply for a Convention for proposing amendments.[8] Thus, scholars argue that states cannot apply for a Convention for a specific amendment, but rather can only oblige Congress to hold a Convention, where any subsequently proposed amendment could be proposed and voted on. This argument concludes that states are precluded from calling a Convention on a single issue.

This argument fails for several reasons. First, both clauses of Article V use the plural form, “Amendments,” when discussing Congress’s power to propose Amendments. Yet, it is common and constitutionally permissible for Congress to propose single amendments on single issues. Thus, the Framers likely intended this wording to expand the power of the states and Congress to propose Amendments, rather than limit that power. A term appearing in several places in a statutory text is generally read the same way each time it appears.[9] Given that it is Constitutionally permissible for Congress to propose a single Amendment under Article V, it follows that Article V grants Congress the power to propose a single Amendment or multiple Amendments. Similarly, because Article V uses the same wording (“amendments”) for both processes, Article V must allow states to propose a single Amendment or multiple Amendments. Thus, states may call a Convention to propose a single Amendment or multiple Amendments.

Second, the argument that state legislatures have the power to call an Article V Convention but lack power to conduct the Convention or propose amendments is illogical. Under the aforementioned interpretation of Article V, states can obligate Congress to call a Convention, but lack authority to propose Amendments or dictate the discussions of the Convention. Such a reading would render a clause of the Constitution meaningless and would then merely provide Congress with an additional path to amend the Constitution.[10] The clause conferring on states the power to call a Convention was—and is—meant to protect the states and empower them against a disobedient Congress, not to promise the states a procedure for amendment simply to take it away. In effect, this illogical constitutional interpretation is an example of giving with one hand and taking with the other. If Article V is to serve any purpose, states must have the authority to limit the Convention and either vote on the specific issues themselves or obligate Congress to vote on them.

Counting the Applications

In recent months, twenty-four of the thirty-four states required to call a Constitutional Convention have passed such resolutions.[11] Questions concerning the tallying of applications remain. Scholars argue whether applications that limit the requested Convention to a discussion regarding a specific proposed amendment should be counted along with applications requesting a general Convention. Debates exist about whether two applications requesting limited Conventions on separate issues should be counted together. If it were decided that all types of applications would be counted together to reach the two-thirds threshold, it is possible that some states would rescind their applications to prevent a general Constitutional Convention.[12]

If, as argued above, states can limit the scope of an Article V Convention, then applications calling for a Convention for separate subjects should be counted separately. Counting the applications separately would ensure that a state’s application is not counted towards calling a Convention that does not even address that state’s particular issue. Given the application and ratification requirements in order to amend the Constitution, the Framers intended the amendment process to be both lengthy and difficult. This ensures that any changes to the Constitution are not knee-jerk reactions to certain events and are desired by a strong majority of elected representatives, and therefore, the people of the United States. It would be illogical to count two limited applications with wildly different proposed amendments together. If differing applications were counted together, a state in favor of a completely different amendment could piggy-back off the support of a more popular proposed amendment. Further, if all applications were counted together, a state might be reluctant to apply for a popular amendment for fear that other states would pile on numerous applications for other amendments in an attempt to expand the scope of the Convention indefinitely. Thus, if an Article V Convention can be limited, separate subjects must be counted separately in order to ensure that any eventual Convention addresses the concerns of those applications.

Conclusion

Article V protects the states from a recalcitrant Congress and enables them to amend the Constitution. Because an Article V Convention has never been held, it is possible that such a Convention could result in unintended and drastic changes to the Constitution. The amendment process was intended to be a long, difficult process, but fears of a “runaway convention” make this process longer and more difficult than the Framers likely intended. States may be dissuaded from calling for an Article V Convention for fear that the Convention would result in amendments to the Constitution beyond what the applying states intended. In order for Article V to serve its purpose, states must have the authority to propose single amendments as well as multiple amendments for such a convention, and must be able to conduct the amendment process in a manner that they see fit. By allowing states to limit their applications, as well as the scope of the actual Convention, and by counting different types of applications separately, the threat of a “runaway convention” will be extinguished. Thus, states will be granted authority similar to that of Congress to amend the Constitution and will be more likely to call successfully a convention on a discrete issue.

[1] Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765 (2011), Robert J. Martin, The Case for Convening a Constitutional Convention, 185-JUN N.J. Law. 39, n. 55 (1997).

[2] “Scope” refers to the number and breadth of issues to be considered and voted on after an Article V Convention has been called.

[3] Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 736 (1993). Over 400 Convention applications have been submitted to Congress by the states since 1789.

[4] U.S. Const. art. V. “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.”

[5] The first portion of Article V, “The Congress, whenever two thirds of both Houses shall deem it necessary . . .” gives Congress its own method by which to amend the Constitution.

[6] Bruce M. Van Sickle & Lynn M. Boughey, A Lawful and Peaceful Revolution: Article V and Congress’ Present Duty to Call a Convention for Proposing Amendments, 14 Hamline L. Rev. 1, 27-28 (1990).

[7] Id.

[8] Id.

[9] Ratzlaf v. United States, 510 U.S. 135, 143 (1994)

[10] Mount Sinai Hospital of Greater Miami, Inc. v. Weinberger, 517 F.2d 329, 343 (5th Cir. 1975) (“Here we have Congress at its most authoritative, adding complex and sophisticated amendments to an already complex and sophisticated act. Congress is not merely expressing an opinion . . . but is acting on what it understands its own prior acts to mean . . . To hold that HEW does not have the recoupment power attempted to be exercised against Mount Sinai and giving rise to this case would render these amendments pointless and ineffectual”).

[11] Michael Leachman, States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues, Center on Budget and Policy Priorities, July 16, 2014, available at http://www.cbpp.org/cms/?fa=view&id=4165.

[12] Congress and the States would undoubtedly argue over who gets to decide how applications are counted. However, this decision would ultimately be made by the federal courts, who have not had an opportunity to make this decision to date.

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