Why Constitutionalists Should No Longer Fear an Article V Convention

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There are some well-meaning and dedicated constitutionalists who have opposed the state origination of constitutional amendments through an Article V Convention. Not all of their concerns are totally unreasonable. For example, Phyllis Schlafly of Eagle Forum has a valid point in criticizing the convention mode of proposing amendments when advocates of that process offer no concrete answers to such questions as: Who will be going? What will be the convention rules? Where will the convention take place? How will the agenda be limited?

But Schlafly’s concerns have now been addressed by the Compact for a Balanced Budget, which organizes an Article V convention only after at least 38 states and Congress agree on concrete answers to those questions. Already formed by the states of Georgia and Alaska, the Compact for a Balanced Budget leaves nothing to the imagination. It specifies long in advance of organizing any Article V convention the delegates, the convention rules, and the convention location. It also strictly limits the convention agenda to a 24 hour meeting in which a pre-drafted Balanced Budget Amendment will be voted up or down for proposal and ratification.

In short, the Compact for a Balanced Budget leaves nothing to the imagination. No longer do we have to organize an Article V convention to find out what it might propose.

Not surprisingly, many opponents of a non-compact approach to Article V, have come around to support the Compact for a Balanced Budget. But there are some who have not. They claim that an Article V convention is simply inherently uncontrollable; that it was meant to be a “black box” filled with unbound delegates that is empowered to run wild and rewrite the entire Constitution no matter what.

In support of this contention, these Article V opponents rest their legal and historical case entirely on quotes from Madison’s famous letter to Turberville dated November 2, 1788. That letter expressed great fear about the State of New York’s proposal to convene a convention addressing roughly two dozen different amendments to the Constitution. But the truth is that Madison was only addressing New York’s proposal that was famously intended to convene either a wide-open second constitutional convention or an essentially unlimited Article V convention. Madison only meant to criticize New York’s free-for-all approach, which Madison knew was intended to scuttle the Constitution. Madison did not intend for his critique of New York’s proposal to apply to all exercises of Article V, even those that were targeted to specific amendments.

We know this because Madison in Federalist No. 43 specifically stated that Article V “equally enables the general and the State governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other.” This representation implies that the Article V convention was meant to be a mere instrumentality of the states; and that the states can target it to proposing desired amendments, if they so choose—otherwise, the states could hardly be said to have an equal amendment power with Congress.

The fact that states were meant to have the power to propose specific amendments through an Article V convention is further evidenced by the representation made by Madison in his 1799 Report on the Virginia Resolutions that the states could use the Article V convention process for the “object” of obtaining an explanatory amendment that the Alien and Sedition Acts were unconstitutional. After all, if the Article V convention process could be tightly organized for such a targeted and narrow purpose as declaring unconstitutional specific legislation, Madison certainly must have understood that the states had the power to target the convention to proposing specific constitutional amendments.

Madison was far from alone in his understanding of the Article V convention process. George Washington himself—the Chairman of the Philadelphia Convention—wrote to a skeptical friend during the ratification debates in 1787 that “It should be remembered that a constitutional door is open for such amendments as shall be thought necessary by nine States.” In referencing what was then two-thirds of the states—the number of states that must pass the same application to trigger the Article V convention call—Washington clearly meant to underscore that the states could designate desired amendments to be proposed by the convention in their application.

Madison and Washington’s public understandings of the Article V convention process were echoed by prominent federalist George Nicholas at the Virginia Ratification convention as well. Nicholas observed that state legislatures may apply for an Article V convention confined to a “few points;” and that “it is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments.” And this understanding was further underscored by Alexander Hamilton in Federalist No. 85.

In fact, Federalist No. 85 was entirely about the distinctness and superiority of the Article V method of amendments, including the convention mode of proposing amendments, over convening a second constitutional convention. How do we know? Read the following point made by Hamilton: “There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution.”

Significantly, Hamilton clearly differentiated the Article V amendment process from convening a second constitutional convention. He wrote “every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue. And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.”

Notice that Hamilton wrote of “every amendment”—logically including even an amendment to be proposed by convention—as being “brought forth” as a “single proposition.” This is fully consistent with Washington’s understanding that nine states (then two-thirds) could specify desired amendments in their Article V applications. Notice also that Hamilton discounted the “necessity” of “give and take” in the amendment process, without qualifying that statement in regard to an Article V convention; thereby rejecting the notion that the convention process is necessarily one in which there is freewheeling deliberation. Indeed, Hamilton’s reference to “nine, or rather ten states” was clearly meant to emphasize that the states would unite in the desire for a particular amendment either through the convention application process (9 states) or through the ratification process (10 states).

Hamilton further cemented his promise that the states could target the Article V convention process with this statement: “Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.” Again, notice that Hamilton referenced the convention application process (“two thirds”) as being an instance in which the states would “unite . . . in amendments.”

Hamilton’s statement about relying on “state legislatures to erect barriers” is also undoubtedly a representation that the states would target the Article V convention mode of proposing amendments through their applications. Why? Because the only way Hamilton’s statement can be taken as true is if it were in reference to the power state legislatures have to apply for a convention for proposing amendments. This is because only the application portion of the Article V process is entirely controlled by state legislatures. There is no guarantee whatsoever that state legislatures can “erect barriers” through the ratification process because Congress, not state legislatures, chooses between ratification by state legislature or by in-state convention. Thus, it would be a false statement to say that we can rely on “state legislatures to erect barriers” through the ratification process. Therefore, when Hamilton wrote we could rely on “state legislatures to erect barriers” he could have only been referring to the power of state legislatures to use the Article V convention application process to “erect barriers” against the national authority.

Yet more confirmation that the states hold the power to target the Article V convention to desired amendments is found in Hamilton’s footnote to the phrase “thirteen to nine” in the following observation in Federalist No. 85: “If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. Here, then, the chances are as thirteen to nine[fn] in favor of subsequent amendment, rather than of the original adoption of an entire system.” Significantly, Hamilton’s footnote says: “It may rather be said TEN, for though two thirds may set on foot the measure, three fourths must ratify.” The colorful reference that “two thirds may set on foot the measure” confirms that the application process (which alone requires action by “nine,” then “two-thirds,” of the state legislatures) will set “on foot” the “alterations” to be “effected.” This representation is more evidence of the view that the Article V convention would be targeted by the state legislative application process.

To conclude, whether one looks to Washington, Madison, Hamilton or lesser figures, the founding era evidence overwhelmingly supports the observation that the Founders publicly represented that the states controlled the Article V convention process to propose the amendments they desired. By laser-targeting the Article V convention process on the proposal and ratification of a specific Balanced Budget Amendment, the Compact for a Balanced Budget is fully exercising such power. Consequently, with the Compact concretely answering all questions about the convention process, there is no longer any reason for any genuine constitutionalist to oppose the convention mode of proposing amendments. Instead, constitutionalists should unite behind the Compact for a Balanced Budget.

Nick Dranias
Visiting Scholar
Member, Board of Directors
Compact for America, Inc.