Sunday, October 21, 2007

Article V: The Convention Clause

I've probably mentioned before that I'm a member of the Federalist Society. In fact, as I write this there is a Fed Soc. meeting in downtown Chicago for the release of Clarence Thomas' book, My Grandfather's Son.

In addition to invitations to cool events like that, one of the benefits of membership is the quarterly Harvard Journal of Law & Public Policy. I don't always have the time to read these, and usually only take a look at one or maybe two articles in each one. The Summer 2007 volume has been sitting around for a while, waiting for a spot in the rotation, because I was intrigued by one of the "Notes" entitled "The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process."

It's worth reading and I encourage you to take a look at it, however in the interest of busy readers, I'll summarize the important points. First, Article V:

Article 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.

Here's my analysis. Based upon the historical background, the original purpose of the Convention Clause was to give the States the power to correct/curb either a corrupt or incompetent Legislature. As the Note states, there are a few questions with respect to Article V, the two most prevalent being: 1) can a convention be limited (avoiding a "runaway convention") and 2) can Congress control the subject of a convention?

First, given the purpose of the Clause, the power to limit the scope of a convention lies naturally with the States, who are making the application. Calling a convention for the purposes of revoking an existing Amendment, or calling for the purposes of approving a new Amendment, qualified in the application as for that purpose alone, is sufficient protection to limit the scope of the convention when called. Second, with respect to Congress' ability to control the subject matter pursuant to the political question doctrine (I would recommend reading the Note for a good background), this is inconsistent with the original purpose of the Clause, and therefore Congress' duty is ministerial, and that alone (obliged to call the convention; the use of the word "shall" denotes this).

And of course, to the first concern again, in the unlikely event of a runaway convention, the States still could reject the work of the convention (the convention fails the 3/4 ratification hurdle).

The illustrative point here is that there exists a mechanism, and a fairly well-constructed one, to make changes in the realm of external government. A well-educated electorate, of the opinion that a beneficial or even necessary change has to be made, has at its disposal a tool for preserving liberty.


DR said...

Great post.

Michael Tams said...


Thanks for the comment. I find the provisions both interesting and applicable to renewal-minded persons, and have wanted to post on it for a while.


Terry Morris said...

Good post, Mike. The State initiated method of amendment is one of my favorite subjects to harp on, as you well know.

I haven't had time to read the entire article yet, but it looks like a good'n based on the introduction. I scanned the meat of the article quickly, and though I'm sure it's referenced in the article (how could it not be?) I did want to mention to the readers, who may be interested but pressed for time, that Federalist #85 deals with this subject.


Michael Tams said...


Thanks for the comments. I know the convention clause is a topic near and dear to your heart, and it is one close to mine also. ;)

I think the concerns I have had about it in the past are less pressing now. God bless those men of vision who recognized that the States might have to reform the highest spheres of external government.


Terry Morris said...

Well, though I understand that a certain amount of hesitation is not only proper but necessary anytime we consider amending the constitution, I think that can be taken to the extreme just like anything else. And as I've said so many times in the past "anything taken to the extreme is bad."

Since I come from the old school which teaches that "if we wait until we're thoroughly prepared to do something, anything, it'll never get done," I'm generally less hesitant than most conservatives about amending the constitution. My hesitation in amending the constitution generally consists in (1) an improper amendment to the federal constitution such as the FMA, and (2) the method of amendment.

It is my firm belief that the only way to set our government aright is for the American people, by a solemn and a determined act, to initiate the process via their State legislatures. Otherwise, we can count on this, that either the federal Congress will initiate and determine the process occasionally (220 years divided by 17 constitutional amendments, excepting the bill of rights), or liberals will effect illegitimate extra-constitutional amendments via the federal courts.

To me these are simply unacceptable alternatives which our experiences should have convinced us by now work rather to destroy than to preserve balanced constitutional government. But these processes will continue to go off like clockwork in the absence of the kind of interjection we're discussing here.


Michael Tams said...


Probably not a shocker for me to say we're in agreement here. Of course, poorly considered amendments would be fought vigorously in this space and others; we'd do everything we could to ensure that they didn't meet the 3/4 criteria.

And, agreeing as I do with your proposition, we need to keep up the education efforts, such as they are. Providence will provide the necessary means as long as we are open to the call.

Thanks again for the comments.


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