Is There a New Constitutional Convention on the Horizon?

By
John Engle
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2
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A little-known (and even less understood) provision of the United States Constitution looks like it might soon see action for the very first time: An Article V convention.

Article V of the Constitution deals with constitutional amendments. Here it is, in full:

“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 presents two ways by which amendments to the Constitution can be proposed and ratified.

In the first instance, a two thirds majority in both the Senate (67 senators) and House of Representatives (290 representatives can propose and pass amendments, which must then be ratified by three quarters of the states (38 states). This is the path to amendment that most people are familiar with, which is unsurprising since it has been the method by which every amendment has been passed to date.

Yet Article V clearly states a second method: “On the application of two thirds of the states (34 states), Congress must call a convention for proposing amendments.”

This second method was proposed by George Mason, a founding father from Virginia, on the basis that the states required some method of reforming the Constitution that bypasses the federal power.

That desire is reflected in the wording of Article V, and upheld by most legal scholars since, apart from calling the convention upon application from the states, Congress has no power over the proceedings of a convention.

Why, you might ask, am I talking about a byzantine constitutional provision that has been virtually dormant since the birth of the country? The answer is this: It may not be dormant much longer.

The Balanced Budget Battle

There have been sporadic efforts over the past 200 years to get enough states signed on to a convention, but we are now closer than ever to seeing one actually happen. The proximate cause is the years-long battle by activist groups to pass a balanced budget amendment at the federal level.

The Balanced Budget Amendment Task Force (BBATF) is now within spitting distance of achieving what no other interest group has managed in the history of the United States.

Its proposed amendment has been passed by 27 state legislatures already, and they actually have a shot of reaching the necessary 34 within a few years.

Seven more states are needed, which happens to be the exact number of Republican-controlled legislatures that have not yet passed the amendment resolution. If the GOP can maintain its strength for a cycle or two more, we could see a full-blown constitutional convention in action.

The reason the balanced budget amendment is the core of any convention prospect comes from legal precedent (such as there is for this largely untested constitutional provision) that contends that the states must submit a single application for it to be valid. The BBATF is getting close to victory even with that legalistic hurdle.

But calling a convention is just the start of the process. It’s what happens (or could happen) next that is both exciting and somewhat terrifying.

Who Runs the Show?

It is a strange thing, to have such a potentially transformative institution exist within our law with almost no concrete understanding of what it would look like in practice.

However, it probably wasn’t too confusing a prospect for the framers of the Constitution – after all, many of them had themselves participated in multiple constitutional conventions at the state and national levels.

For us (their descendants) however, it is a wholly alien prospect.

One key question is who will control the delegates.

Legal scholars generally conclude that the federal government has no legitimate power over the proceedings, but most also surmise that the states do have such power. That puts a remarkable amount of power in the hands of state governments – especially smaller states, since every state has an equal voice in a convention setting.

History is replete with examples of delegates to conventions receiving instruction from their states, but also of delegates acting on their own initiative. The latter scenario is probably less likely in a modern context where instantaneous communication is the norm, but it is worth recognizing that individuals deputized by state governments might be given sufficient leeway to operate as they see fit.

Runaway Convention

You might still be scratching your head at why any of this really matters. After all, an agenda dedicated to a balanced budget amendment hardly presents much room for mischief.

But that’s where things get really interesting.

While a convention must be called under a common application, in this case a balanced budget amendment, the scope of the application does not limit the scope of the convention. Indeed, vanishingly few constitutional experts would suggest that a convention, once called, must be bound by its initial stated goal, since historical precedent stands in favor of the widest possible scope.

After all, the original Philadelphia Convention of 1787 was called with the stated purpose of amending the Articles of Confederation, not with replacing the document.

So a new constitutional convention would probably have an unlimited scope in terms of amendments it could propose. That opens many fascinating possibilities as well as some that are downright frightening.

The scariest possibility is that history might try to repeat itself.

The Philadelphia Convention not only produced a new Constitution, but it also unilaterally shifted the goalposts for its ratification: The Articles of Confederation, ostensibly the law of the land, required unanimity among the states for an amendment to carry. The Framers set themselves the less lofty target of nine out of thirteen states.

In practice, it was only after New York became the eleventh state to ratify that the Congress of the Confederation officially recognized the Constitution as ratified.

While it still feels better placed in the plot of a political thriller, it would not necessarily be impossible for a convention to go rogue and propose sweeping amendments – and perhaps even try to shift the goalposts for passage like the Founders did before them.

Even with states in control of their delegations, it is not all that hard to imagine partisan conflict working to rewrite certain passages of the Constitution, or to insert new articles.

Playing with Fire

Ultimately, politics is about power. So it is unlikely that even in the event of a runaway convention that anything catastrophic would materialize – the federal government and the governments of the states would likely not countenance sweeping changes proposed by a one-off gathering of delegates.

That said, there are still a startling number of ways a full-blown constitutional crisis could break out.

While I would love to see one, just to see how it plays out, an Article V convention has enough question marks over it that the prospect leaves me with a feeling of significant trepidation.

The next couple years will be fascinating, if only to see some age-old constitutional questions answered.

Hopefully those answers won’t cost us a constitutional crisis.

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John Engle

John Engle is a merchant banker and author living in the Chicago area. His company, Almington Capital, invests in both early-stage venture capital and in public equities. His writing has been featured in a number of academic journals, as well as the blogs of the Heartland Institute, Grassroot Institute, and Tenth Amendment Center. A graduate of Trinity College Dublin, Ireland and the University of Oxford, John’s first book, Trinity Student Pranks: A History of Mischief and Mayhem, was published in September 2013.

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