The Myth of a Runaway Amendments Convention

The Founders bequeathed Americans a method to bypass the federal government and amend the Constitution, empowering two thirds of the states to call an Amendments Convention. In the wake of Mark Levin's bestselling book, The Liberty Amendments, proposing just such a convention, entirely unnecessary alarms have been raised by even some of the leading lights of conservatism, based on an incomplete reading of history and judicial case law. Phyllis Schlafly is a great American and a great leader, but her speculations about the nature of the Constitution's "convention for proposing amendments" are nearly as quaint as Dante's speculations about the solar system. Those speculations simply overlook the last two decades of research into the background and subsequent history of the Constitution's amendment process. They also ignore how that process actually has worked, and how the courts elucidate it.

The Founders provided, in Article V of the Constitution, for a "convention for proposing amendments." They did this to enable the people, acting through their state legislatures, to rein in an abusive or runaway federal government. In other words, the Founders created the convention for precisely the kind of situation we face now. Mrs. Schlafly doesn't think we know much else about the process. She writes, "Everything else about how an Article V Convention would function, including its agenda, is anybody's guess." But she's wrong. There is no need to guess. We now know that: The "convention for proposing amendments" was consciously modeled on federal conventions held during the century leading up to the Constitutional Convention, when states or colonies met together on average about every 40 months. These were meetings of separate governments, and their protocols were based on international practice. Those protocols were well-established and are inherent in Article V. Each federal convention has been called to address one or more discrete, prescribed problems. A convention "call" cannot determine how many delegates ("commissioners") each state sends or how they are chosen. That is a matter for each state legislature to decide. A convention for proposing amendments is a meeting of sovereignties or semi-sovereignties, and each state has one vote. Each state commissioner is empowered and instructed by his or her state legislature or its designee. As was true of earlier interstate gatherings, the convention for proposing amendments is called to propose solutions to discrete, pre-assigned problems. There is no record of any federal convention significantly exceeding its pre-assigned mandate -- not even the Constitutional Convention, despite erroneous claims to the contrary. The state legislatures' applications fix the subject-matter for a convention for proposing amendments. When two-thirds of the states apply on a given subject, Congress must call the convention. However, the congressional call is limited to the time and place of meeting, and to reciting the state-determined subject. In the unlikely event that the convention strays from its prescribed agenda (and the commissioners escape recall), any "proposal" they issue is ultra vires ("beyond powers") and void. Congress may not choose a "mode of ratification," and the necessary three-quarters of the states would not ratify it in any event. Contrary to Mrs. Schlafly's claim that "Article V doesn't give any power to the courts to correct what does or does not happen," the courts can and do adjudicate Article V cases. There has been a long line of those cases from 1798 into the 21st century. "But," you might ask, "Will the prescribed convention procedures actually work?" They already have. In 1861, in an effort to prevent the Civil War, a convention of the states was called to propose a constitutional amendment to Congress. Congress subsequently deadlocked over the amendment, but the convention did everything right: It followed all the protocols listed above, and it produced a compromise amendment. Although the convention met in a time of enormous stress, this "dry run" came off well, with none of Mrs. Schlafy's speculative "horribles." In any political procedure, there are always uncertainties, but in this case they are far fewer than predicted by anti-convention alarmists. And they must be balanced against a certainty: Unless we use the procedure the Founders gave us to rein in a "runaway" Congress, then Congress will surely continue to run away. Rob Natelson, Professor of Law (ret.), The University of Montana, taught constitutional law and constitutional history, and currently serves as Senior Fellow in Constitutional Jurisprudence at the Independence Institute. He is a widely-published scholar on the Constitution and on the amendment procedure, and several Supreme Court opinions have relied on his work. For his biography and bibliography, see http://constitution.i2i.org.