Friday, March 11, 2011

Dangers of an Article V Convention

Written by Matthew Spalding, Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation

An Article V amendments convention has been a debated proposition since the very beginning. Madison understood this when he argued at the Constitutional Convention that “difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.”

He recorded some of these questions in his convention notes: “How was a Convention to be formed? By what rule decide? What the force of its acts?”

Combine these with the fact that no such amending convention has ever occurred (that is, there is no precedent) and too many serious questions are left open and unanswered. This absence of guidelines or rules makes an Article V convention a risky venture, and one that legislators have historically avoided.

Legislators have threatened an Article V convention as a way of encouraging Congress to take action on a certain issue. In these instances, the threat of an Article V convention (with all of its unknowns) is considered dangerous enough that Congress proposes the desired amendment through the usual congressional method. This is not an unreasonable aspect of a constitutional strategy, but very different from claiming that we should actually have such a convention as a matter of course.

The largest question is whether an amendments convention can be limited to specific amendments or even topics.

The pro-convention argument assumes that the power to limit the convention is inherent in the power to call the convention in the first place. I’m not so sure that follows: The text says that upon application of the states Congress “shall call a Convention for proposing Amendments,” not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention).

Indeed, it is not at all clear as a matter of constitutional construction (and doubtful in principle) that the power of two-thirds of the states to issue applications for a convention restricts, supersedes, or overrides the power of all the states assembled in that convention to propose amendments to the Constitution.

When Madison later pointed to an Article V convention as a way to solve the Nullification Crisis (as did Lincoln during the Civil War), an amendments convention was understood to be free to propose whatever amendments thought necessary to address the problems at issue.

Serious scholars will undoubtedly continue to debate the historical record and speculate about the possibility of an amendments convention under Article V. But the argument that, as a matter of course, we should spend considerable time, money and effort right now to design, plan, and implement a convention—despite the unknowns and risks involved—is both imprudent and potentially dangerous. It is a distraction that inevitably gets bogged down in a debate over technical details, taking valuable attention and focus away from the substance of the constitutional reforms themselves.

Claims of the ease and efficacy of an Article V convention are also misleading to the many committed and well-meaning reformers and activists who are serious about constitutional change in the United States.

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