Constitutional Convention

Conclusion: An Article V Convention Would Invite Constitutional Chaos

"I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?"

Supreme Court Justice Antonin Scalia

Despite the claims of Article V convention advocates, there is not sufficient legal evidence to support the claim that a constitutional convention could be limited to one issue.

Michael Leachman of the Center on Budget and Policy Priorities and Georgetown University Law Center Professor David Super explain that an Article V constitutional convention could not be controlled because, among other reasons:

  • There are no guidelines or rules to govern an Article V convention in the Constitution, leaving the opportunity for the convention delegation to write its own rules;
  • A convention could create a new ratification process, as occurred during the original 1787 convention; and
  • No judicial, legislative, or executive body would have clear authority to settle disputes about a convention.

At a 2011 panel convened to examine constitutional convention proposals, Harvard Law Professor Laurence Tribe argued there is no need to debate the possibility of a runaway convention because there is no agreement or legal authority on what any constitutional convention would look like in the first place. Tribe, a renowned constitutional scholar, laid out numerous unanswered questions regarding the constitution convention process under Article V, including:

  • How will Congress add up the Article V applications? Can Congress and the states constrain the convention’s mandate based on those applications?
  • May the convention propose amendments other than those it was called to consider?
  • May Congress prescribe rules for the convention, or limit its powers in any way?
  • May the convention set its own rules, independent of Article V, for how amendments that it proposes may be ratified?
  • Are the states to be equally represented, or does the one-person, one-vote principle apply? What about the District of Columbia? Do the citizens of the District have a role in a convention?
  • Could delegates be bound in advance by legislation or referendum to propose particular amendments or vote in a particular way?
  • Could the convention propose amendments by a simple majority, or require a supermajority of two-thirds?
  • If each state gets one convention vote, must delegates representing a majority of the population nonetheless vote for an amendment in order for it to get proposed?
  • Conversely, if the convention uses the one-person, one-vote formula, must the delegations of 26 states – perhaps including the District of Columbia – vote in favor of a proposed amendment?
  • What role, if any, would the Supreme Court play in resolving conflicts among Congress, state legislatures, governors, referenda, and the convention itself? Can we rely on the Court to hold things in check?

Ultimately, Professor Tribe said a constitutional convention would essentially “put it [the Constitution] all up for grabs,” and his doubts about a convention overcome his desire to experiment with the Constitution. At the same panel, Professor John Baker, a conservative legal scholar, echoed Tribe’s concerns, arguing that there is no authoritative way to establish what the founders meant by a “convention.”

In sum, whatever one’s views on the merits of prospective amendments to force a balanced budget or solve the problem of big money in politics, there is ample reason to reject the use of an Article V convention.

The alternate path to an amendment, through action by a two-thirds majority in Congress and then ratification by three-fourths of the states, has been used successfully through American history and can be again.It is a difficult process but one that ensure that changes will be made with the kind of care and deliberation our nation’s charter and our nation’s citizens deserves.

 Previous: Opposition from Across the Spectrum  

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