Article V does not authorize a constitutional convention; it authorizes a convention for proposing specific amendments.
When the Founders drafted the U.S. Constitution in 1787, they specifically rejected language for Article V that would have allowed the states to later call for an open convention.
Thirty eight (38) states must ratify any proposal from an amendments convention, requiring a broad consensus that makes sure an amendments convention cannot “runaway.”
The limited scope of an amendments convention is underscored by the fact that it specifically says amendments cannot alter the equal number of votes for each state in the U.S. Senate without the consent of the affected state. This establishes that an Article V convention couldn’t simply rewrite the entire Constitution.
The states define the agenda of an amendments convention through their applications for the convention and through the commission of delegates. Amendments conventions can be limited to specific topics.
The Constitution was sold by the Founders to the ratifying states on the basis that they retained their ultimate authority over the federal government through their Article V amendment powers. James Madison in Federalist No. 43 specifically argued that states should use the power to correct errors in the Constitution. And Alexander Hamilton in the “final argument” of the Federalist Papers, in Federalist No. 85, said the Article V amendment process was the means by which the states would rein in an out-of-control federal government. One cannot take the Constitution seriously and contend that Article V was not meant to be used. It is a critical and “deal closing” element of the balance of power created by the Constitution.
There is zero precedent that any convention of the states has ever “runaway” from its assigned agenda. There have been 12 interstate conventions in the history of our country. All of them stayed within their stated agenda. Even the Constitutional Convention of 1787 was not convened to “amend” the Articles of Confederation, but to “revise” and “alter” the Articles to establish an effective national government. This was fully consistent with the Articles of Confederation because the Articles authorized alterations – a term that had revolutionary significance because it echoed the language of the Declaration of Independence. The broad purpose of the Constitutional Convention of 1787 was specifically mentioned in the call of Congress and in nearly all of the commissions for the delegates for each state. The 1787 convention did not runaway at all; it did what it was charged to do – like all interstate conventions preceding it.
The procedures for conducting an amendments convention are similar to Congress’ long-established rulemaking powers. Constitutional text, language and custom make clear that Congress calls the convention, setting a time and location; states appoint delegates by way of resolutions and commissions (or general state law); delegates initially vote as states at the convention; and majority votes will decide what amendments are proposed for ratification. An amendments convention is simply an interstate task force.
The limited scope of an amendments convention is similar to that of state ratification conventions that are also authorized in Article V, but no one worries about a ratification convention “running away,” even though such a convention does make law.
An amendments convention, because it only proposes amendments and does not make law, is not an effective vehicle for staging a government takeover.
Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.
The original version of this story was posted online on Feb. 20, 2011.