A Simulated Article V Convention is happening in Williamsburg, Va, This Week. What is An Article V Convention?

This week in Williamsburg, Va, Citizens for Self-Government is hosting a simulated Convention of the States to propose amendments to the Constitution under Article V of the Constitution. Their mission is –

[T]o urge and empower state legislators to call a convention of states. The delegates at such a convention would have the power to propose amendments to the Constitution that would curb the abuses of the federal government. Article V of the Constitution gives them this power; the COS Project will give them an avenue through which they can use it.

Article V of the Constitution includes a provision that “on application of two-thirds of the several States,” Congress “shall call a convention for proposing Amendments.”

Supporters of Article V conventions have mounted vigorous (and yet unsuccessful) campaigns in the past (reaching a peak of interest in the 1960s through the early 1980s) on a range of issues including: restrictions on abortion, apportionment of state legislatures, and a federal balanced budget. None of these campaigns attained the necessary applications from two-thirds of the states. Indeed, we have never adopted a Constitutional amendment using an Article V convention. All 27 of the Constitution’s amendments adopted since 1787 came from Congress and not from applications of the states (Article V provides that whenever two-thirds of both Houses of Congress “shall deem it necessary, shall propose Amendments to [the] Constitution.”)

In recent years, in response to congressional deadlock, there has been a renewed interest in Article V conventions from groups across the political spectrum. Groups on the right like Citizens for Self-Government are interested in the balanced budget requirement and restrictions on federal governmental authority. On the left, there is an interest in calling an Article V convention to repeal the Supreme Court’s decision in Citizen United.

So why haven’t Article V conventions worked in the past?

The main reason is the Constitution’s requirement that a super-majority of two-thirds of the state legislatures must apply for an Article V Convention.

But there’s a reason for this stringent requirement, as James Madison discussed in The Federalist No. 43.

“It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults.”

What happens after Amendments are proposed?

Article V reads in relevant part that “Amendments . . . 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.”

What this mean is that amendments proposed by either Congress or an Article V Convention must be ratified by the legislatures or special conventions in three-fourths of the states (38 total today). Furthermore, Congress has the authority to choose the method of ratification in the states. The options are ratification by state conventions called specifically for considering ratification of amendments, or ratification by the legislatures of the states. In either case, the three-fourths requirement applies.

Congress has only specified ratification by convention for the 21st amendment, which repealed the 18th Amendment (prohibition).

Why Might Calls for an Article V Convention Be a Good Thing?

One would think that the three-fourths requirement for ratification would quiet fears of a runaway convention, but many people still raise this as a major concern. It’s a concern that, admittedly, I share with many others.

But there might be some good to come out of the current interest in Article V conventions, even if they are ultimately unsuccessful –

It could generate genuine public and, perhaps, even congressional interest in the constitutional issues being discussed. Even a failed effort might motivate many Americans to think about the Constitution.

Plus, Article V simulations, like the one underway in Williamsburg, Va., this week, are an excellent opportunity to teach our nation’s citizens about the Constitution and constitutional change.

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