Time for Constitutional Convention 2.0?

One of the best things about the Constitution of the United States of America is that it created a process for amending the Constitution. The people that created the constitution (who are called the “framers” in political science literature) knew that despite all the work they put into it the Constitution was not perfect. Even if it had been perfect for the time in which it was written, many things have changed. In the almost 225 years of its existence, the Constitution has been amended 27 times. Although Article V of the Constitution provides two separate ways of proposing amendments, every one of the amendments has been proposed by the same method. The means of proposing amendments that has always been used has been a vote by a two-thirds majority of both the House of Representatives and the Senate. The means that has never been used successfully (the process was started, but not completed) is the calling of a convention for the purpose of proposing amendments upon application by two-thirds of the states. It is time we started thinking about using the constitutional convention process. Relying on Congress as the only means of proposing amendments means that the only amendments that are proposed are the ones that Congress finds convenient. If there is a need for an amendment that reduces the power or prestige of the Congress or its members or which Congress finds to be inconvenient, it is highly unlikely to be proposed. For example, the 22nd Amendment limits the President of the United States to two terms. Congress would never propose a similar amendment limiting the number of terms of office of members of Congress: they could limit the terms of the President because the President has no role in the process of amending the Constitution. Polls have shown that the American public is losing faith in Congress as an institution. It doesn’t make sense for an institution in which the American public has so little faith to have exclusive control over proposing amendments. It is time to give more control to the people and the states.

The method of proposing an amendment to the Constitution that has not yet been used successfully is that of a convention for proposing amendments that Congress calls on the application of two-thirds of the states. Such a convention is referred to in political science literature as an “Article V” convention, because Article V is the part of the Constitution that says how the Constitution is to be amended. There are a number of problems involved in applying for and calling an Article V convention, and much of the problem comes from the wording of Article V itself. For example, there is no standard about what an application by a state for an Article V convention is. Must a state call for a convention that may then make whatever amendments it wants and as many as it wants, or can a state restrict its application to calling for a convention that is restricted to proposing one amendment on a specific subject matter? If several states apply for Article V conventions regarding amendments on similar subjects, how is the decision made about whether they are about the same subject matter? Who keeps track of how many applications are submitted? May a state retract an application for a convention once it has applied? How is representation at a convention apportioned – by population or be each state having an equal number of delegates? Who chooses delegates to a convention and by what method? In order to keep any potential Article V convention from becoming a big controversial mess, I propose first that Article V itself be amended to clear up these issues.

In future posts, I intend to discuss the history of applications by states for an Article V convention, the problems with the process that the history reveals, and specific suggestions I have to clean up the mess. Meanwhile, I ask readers of this blog to participate in the discussion. If you could propose amendments to the Constitution, what amendments would you propose? Some people have suggested that an Article V convention could degenerate into a “runaway convention” proposing many amendments that could do harmful things such as limiting the rights protected by the Bill of Rights. Others think that the fact that amendments needed to be ratified either by three-fourths of the states or be conventions in three-fourths of the states (whichever method of ratification is proposed by Congress) prevents a possible runaway convention from being a realistic threat. What do you think? Post a comment with your thoughts. Comments may not be available for others to view right away because I moderate the comments.