Advocates of an Article V convention to amend the U.S. Constitution are conducting a sophisticated campaign to convince state legislatures that applying to Congress for an Article V convention has no downside, and that any proposed amendments will be consistent with the legislators’ preferred policy positions. This campaign has failed because it is based on unsupported assumptions and illusory promises that do not hold up under scrutiny.
Deceptions begin with the marketing label, “Convention of the States”– a phrase not found in Article V.1 Assuming an Article V convention is a convention of the states, instead of a unique entity created for the serious and specific purpose of amending the Constitution, obscures the issues state legislators must consider before asking Congress to call a convention. Properly understood, an Article V convention for proposing amendments is an alternative method of amending the U.S. Constitution that has never been used, for good reasons. If two-thirds of the states (34) file “applications” asking for an Article V convention, Congress would call for a Convention to Propose Amendments, or CPA for short.
Once called by Congress, an Article V CPA would be a federal entity operating under rules and agendas the convention sets for itself. Assumptions and promises about states being able to control the proceedings – other than applications to Congress, sending delegates, and votes to ratify the results – are based on opinions, not the Constitution, precedent, or law.
The following points briefly summarize arguments on both sides, which are further analyzed in a comprehensive article by Professor of Law Emeritus William A. Woodruff. 2
A. Claim: An Article V “Convention of the States” would operate under established and well-known procedural rules and processes that would keep the convention on track.
Response: No such rules exist, and advocates are assuming their own argument that Article V calls for a convention of the states. History does not support either claim.
The sparse language of Article V authorizes an unprecedented “convention to propose amendments,” (CPA), not a “convention of the states.” At the time when the Founding Fathers wrote the Constitution, “conventions of the states” were interstate assemblies used to negotiate and resolve problems arising among the early states and regions.
These conventions did not propose amendments to the federal Constitution, and there is no reason to believe the Founders incorporated the “convention of the states” concept into Article V. Nor does history offer evidence to support some advocates’ claims that “everyone knew” that Article V would authorize a federal “convention of the states.” The Founding Fathers could have specified a “convention of the states” for proposing amendments. But they didn’t.
The free-standing Article V clause in the Constitution created a new option – unlike any interstate meeting of states. The language of Article V, however, does not address the details and procedures of a federal convention to propose amendments. 3
James Madison, the Father of the Constitution, knew conventions better than any modern legal scholar. Article V was drafted in Philadelphia as a compromise between delegates who favored a strong central government and those who feared that a strong central government would abuse its authority. Madison recognized Article V as a new entity and raised concerns about the vague, non-specific ambiguity of its language.4
In a subsequent letter, Madison wrote: “Having witnessed the difficulties and dangers experienced by the first convention which assembled under every propitious circumstance, I should tremble for the result of the second.” (Emphasis added) 5 The words of James Madison carry far more weight than self-assuming claims being used to promote a high-stakes project that would create unnecessary risks without effective action to solve targeted problems.
B. Claim: An Article V convention would be limited to certain topics, such as fiscal and jurisdictional limits on federal government power and term limits on federal officials.
Response: There is no constitutional language, precedent, or consistent logic to guarantee this promise. Article V is silent on whether state applications for a CPA, or a congressional call for an Article V CPA, could limit convention proceedings to certain topics or outcomes.
Even advocates acknowledge that a CPA would be a deliberative body, not a rubber stamp. Delegates would draft, debate, and decide the wording of proposed amendment(s) without limitations, including pre-written directives from the states or Congress.
Even if there were such limits on proceedings, there is no guarantee that an Article V CPA would only propose amendments that state legislators voting for a convention application would favor. Once proceedings begin, proposed amendments will reflect the delegates’ views, not the promises of advocates who lobbied state legislators with a slick PR campaign based on selective citations and interpretations of the historical record.
Like any legislature, a CPA would be empowered to deliberate and debate, make deals, horse-trade, and adopt compromises in unpredictable ways, sometimes the opposite of what some convention supporters are being led to expect.
For example, the three issues proposed in applications promoted by one of the pro-convention groups would impose fiscal restraints on the federal government, limits on the power and jurisdiction of the federal government, and limits on terms of office for federal officials and members of Congress. All these topics could be addressed in radically different ways. 6
Regardless of misleading promises being made today, convention delegates would be empowered to promote causes that they themselves favor or oppose. Legislative sleights of hand and legislative shenanigans like those used to pass the Affordable Care Act (a.k.a. Obamacare), also could produce unexpected results.7
C. Claim: The states can control an Article V convention by placing restrictions on delegates and imposing penalties if they depart from preferred policy goals.
Response: For several reasons, any attempt to control delegates by imposing legal penalties for departures from the preferred policies of one or more legislatures would be ineffective.
First, state legislatures likely would create the selection process, such as a popular vote or selection by the legislature, but Article V is silent on how delegates would be chosen. There is no guarantee, or reason to believe, that delegates to a CPA would be a homogenous group of like-minded political thinkers. Polarized political forces would produce convention delegations reflecting dominant political ideologies and factions that could be diametrically opposed to objectives that Convention of the States supporters say they want. 8
Second, state legislatures could not micromanage delegates, any more than they can micromanage the decisions of elected representatives in Congress.
Third, the deliberative function of a CPA would make it impossible for state legislatures to “control” or manage convention procedures, especially through criminal sanctions. Criminal statutes must give fair notice to a person of what conduct is prohibited, but the very nature of legislative debate over the language of any proposed amendment makes specific “fair notice” virtually impossible.
Fourth, the Philadelphia Convention of 1787 revealed the ineffectiveness of state legislatures trying to control a convention outcome by restricting the authority of delegates. Ten delegates arrived in Philadelphia with state-imposed restrictions on their authority, but 70 percent (seven of ten) did not comply. 9
This historical record reveals how ineffective such restrictions would be. Attempts to control delegates to a future Article V convention would be no more effective than restrictions on the inspired delegates who met to write the Constitution in 1787. America’s Founding Fathers, meeting in Philadelphia, decided the scope of the Convention without supervision, oversight, or control by either Congress or the state legislatures.
D. Claim: Even though the Constitution does not provide detailed guidance, states participating in a CPA could rely on federal courts to resolve any disputes
Response: Complexities of federal jurisdiction likely would make lawsuits nonjusticiable, meaning not within the authority of the court to decide.
Some CPA advocates claim that Article V issues would be “freely justiciable,” and that federal courts would quickly produce rulings in their favor. Advocates making this extremely weak argument are either naïve or unaware of the realities of federal court jurisdiction.
There has never been an Article V CPA, but even if one occurred and a lawsuit were filed, it is far from certain whether a federal court would have jurisdiction to consider the case.
In the past, federal courts have reached the merits of some cases involving congressionally proposed amendments, which were brought to determine whether state ratifications, rescissions, or time limits on the ratification process were valid. However, because we’ve never had a CPA, Federal courts have never been asked to decide the myriad of unknowns that would surround an Article V convention to propose amendments.
Courts have declined to hear cases arising out of the congressional amendment process for several reasons, such as lack of standing, ripeness, or mootness. In a 1939 case (Coleman v. Miller) challenging the validity of a state’s vote to ratify a proposed child labor amendment thirteen years after Congress first proposed it, the Supreme Court ruled that it was a political question and therefore nonjusticiable. 10
Some CPA advocates claim that the “activist judiciary” has expanded federal power and need to be reined in, just like Congress. Then they assure us the same federal courts that are part of the problem will resolve any disputes over the CPA process in a timely fashion and in their own favor. Neither presumption is justified. Such claims are even more ironic in view of the same advocates’ intent to place restraints on the judiciary.
Contradictory reasoning such as this has no support in constitutional law or logic.
E. Claim: An Article V convention involves no risk at all because it would take 38 states to ratify any proposed amendment(s).
Response: As the argument itself concedes, a CPA could indeed produce radical amendments and unexpected consequences, regardless of promises to the contrary.
Political dynamics are fluid, not static. Current “woke” policies and diversity, inclusion, & equity (DIE) mandates likely would influence convention delegations, rules, proceedings, and results, and some delegations may include outspoken critics of the Constitution itself. 11 Chaotic proceedings, playing out in the full glare of international media, would be comparable to both national political parties meeting in a joint convention at the same time and place.
Article V provides no guidance on how to count to 34 – the number of state applications required for Congress to call a convention. Must all 34 applications be identical? If not, can Congress aggregate applications based on similarity to reach 34? How similar and contemporaneous must applications be? Attempts by advocates to apply their own standards and conduct their own count are the constitutional version of “new math.”
Also unresolved is the question of how CPA convention votes would be counted. A “one-state, one-vote” rule, which was commonly used during interstate assemblies and in Philadelphia, would greatly disadvantage larger states, while inflating the power of smaller ones.12
Between the time when 34 states file congressional applications requesting an Article V convention, and the event occurs and proposes amendment(s) for ratification by 38 states, several election cycles may have changed the political makeup of state legislatures.
It is naïve to assume that the same well-funded activists who poured millions into key states during the 2020 election cycle would not try to influence outcomes by doing so again. Basic rules of Politics 101 would apply: Whoever has the most votes, wins.
Theories, opinions, and arguments abound, but they are not definitive answers. Hope does not guarantee anything. The fact remains that America has never ventured into this terra incognita and the Constitution does not provide a detailed map.
Conclusion:
Whether a convention for proposing amendments is a good or bad idea turns on how one balances the risks and benefits, not on who does or does not support the idea. The 38-state requirement for ratification is a high bar, but nothing would be gained if years and untold resources are spent trying to call and control an unprecedented Article V convention, which ends with nothing to show for those efforts but rejection of bad amendments.
If the best that could happen is a convention that would be unable to propose an amendment capable of ratification, the entire process will have been a colossal waste of time, energy, and resources, benefiting only the professionals who are being paid to promote the project. The congressional ratification process, which has been used 27 times in our history, is far more efficient and prudent than a convention mode offering inherent difficulties and unknowns.
With remarkable foresight, James Madison expressed concern that a convention’s goal, laudatory as it may be, could be frustrated by the “most violent partisans on both sides, . . . the most heterogeneous characters, . . .[and] individuals of insidious views.” As a result, the convention process would “flame which has already too much heated men of all parties. . . [and would present] a dangerous opportunity of sapping the very foundations of the fabric………………………….. [and]
it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony to terminate in the general good.” 13
By any measure, America is far more divided now than it was in Madison’s day. Balancing risks and benefits, it makes far more sense to concentrate time and resources on specific goals that already are achievable through the political process. The United States Constitution, which is exceptional and irreplaceable, deserves protection and respect.
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Eagle Forum, founded by Phyllis Schlafly in 1972, produced this paper. Copies may be made with permission, and more information is available at Con Con/Article V • Eagle Forum.
Endnotes
1 Text of 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 of the other Mode of Ratification may be proposed by Congress . . .” (emphasis added) The dual mode amendment process was a compromise reached to satisfy different factions.
2 Caution and the Constitution: Should There Be an Article V Convention for Proposing Amendments? Charleston Law Review (Fall 2022) available at http://ssrn.com/abstract=4211852, by Prof. William A. Woodruff, Professor of Law Emeritus, Campbell University School of Law, Raleigh, NC, BA University of Alabama (1970); JD (Magna Cum Laude) University of South Carolina School of Law (1978); US Army Judge Advocate Generals’ Corps (ret).
3 A Constitutional Convention (Con-Con) could occur, if all 50 states agreed to come together in a convention like the one in Philadelphia, but this is not what Article V envisions.
4 Madison raised questions in the Philadelphia Convention that are still unanswered: “How was a Convention to be formed? By what rule Decide? What the force of its act?” 2 M. Farrand, The Records of the Federal Convention of 1787 (1911), p. 558.
5 James Madison letter to G.L. Turberville, Nov. 2, 1788.
6 A balanced budget amendment, for example, could place a fiscal restraint on the government, but Congress could achieve a balanced budget by increasing revenue through higher taxes rather than through reduced spending.
Similarly, an amendment could “limit the power and jurisdiction of the federal government” by providing for election of the president and vice-president by “a national popular vote conducted by using a ranked-choice voting method,” which would eliminate the Electoral College and the involvement of Congress in opening and certifying the votes of the College. Even a proposal to limit government power by forbidding restrictions on abortion would fall under this category. As for term limits, the recently proposed Supreme Court Tenure Establishment and Retirement Modernization (TERM) act, which would establish 18-year term limits for Supreme Court justices, would make it possible to pack the Court with justices who are influenced more by politics than the Constitution. (Charles Brandt, The Federalist: The TERM Act Would Pack SCOTUS With Politicians In Robes)
7 In 2010, a bill passed in the House to provide tax breaks to certain military home buyers was amended in the Senate by deleting the entire text of the House bill and substituting the text of what was to become Obamacare, including the individual mandate requiring everyone to purchase health insurance or pay a fine. Subsequently, the Supreme Court upheld the constitutionality of Obamacare by interpreting the individual mandate as an exercise of Congress’ taxing power Two totally unrelated legislative proposals dealt with the same subject: taxes. This reveals how totally different policy provisions can fall under the same subject or topic and be within the “scope” of purported limitations.
8 The National Constitution Center has posted three draft constitutions for the United States, Liberal, Conservative, and Libertarian. Each one addresses likely CPA topics in very different ways.
9 Three delegates from New York, four from Massachusetts, and three from Connecticut were limited to “solely revising the Articles of Confederation,” but only three of the ten complied.
10 In some ratification lawsuits, lower courts have avoided the political question doctrine but found the cases nonjusticiable for other reasons. For example, a 2021 case challenging the National Archivist’s refusal to certify the Equal Rights Amendment as officially ratified was deemed nonjusticiable because the plaintiff could not allege a direct and redressable injury caused by the conduct of the defendant. Equal Means Equal v. Ferriero, 3 F. 4th 24 (1st Cir. 2021).
11 Controversial author Ibrahim X. Kendi, for example, has advocated for an anti-racist amendment to the U.S. Constitution, and MSNBC legal commentator Elie Mystal claimed in an interview that, “The Constitution is kind of trash” written by “captains of the slaving industry.”
12 If, for example, an Article V convention adopted a one-state-one-vote practice and majority rule, 26 of the least populous states, representing less than 20 percent of the population of the country, could propose amendments that would be sent to all the states for ratification. To some this might be a feature while others would consider it a flaw. The point is the Constitution does not give Congress or the states specific authority to set the procedural rules of an Article V convention.
13 See Endnote #4, above.