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Article V and the “Runaway Convention”

Article V requires Congress, “on the Application of the Legislatures of two thirds of the several States,” to “call a Convention for proposing Amendments.” This process for proposing constitutional amendments has never been used, in large part because of fears that it would lead to a “runaway convention.” The exact definition of a runaway convention depends on whom you ask, but most often it refers to a convention that proposes an amendment beyond the scope of what the states contemplated when they applied for the convention in the first place. The term also raises the specter of a radical and unexpected constitutional change, such as a proposal to repeal the Bill of Rights or the like.

My article on the subject, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765 (Spring 2011) appears in the Tennessee Law Review’s symposium issue on Article V conventions. I evaluate the risks of a runaway convention in light of the constitutional text, structure and purpose of Article V and suggest that these risks are much smaller than often suggested. I also suggest additional safeguards that can be put in place to further minimize any risk of a runaway convention.

One safeguard of particular relevance to this blog would be for the House or Senate (or both) to adopt a rule that would prohibit submitting an out of scope amendment to the states for ratification. Before an amendment proposed by a convention may be ratified by the states, Congress must select the method of ratification (i.e., whether the amendment will be ratified by state legislatures or by state conventions). If the proposed amendment is constitutionally invalid, Congress need not (and indeed should not) submit it to the states for ratification.

By adopting a rule that an out-of-scope amendment will not be submitted to the states for ratification, the House and/or Senate could do a great deal to calm fears of a runaway convention and thereby empower the states to exercise their Article V powers as the Framers intended. Of course, Congress may be reluctant to take this step for the same reasons that the Framers provided for the Article V convention in the first place- Congress has no desire to facilitate adoption of the type of amendments that the states are likely to propose. The phrase “term limits” comes to mind.

This weekend there will be a conference at Harvard Law School to discuss the Article V convention process. I will be having a discussion/debate with Professor Mary Margaret Penrose regarding the runaway convention. Professor Penrose’s response to my article may be found here. My brief reply (imaginatively entitled “A Brief Reply to Professor Penrose”) can be found here.

 

 

 

3 Comments

  1. Mark M. says:

    First off, I just wanted to say thanks for such a fantastic blog. Congressional constitutional and procedural issues are an area I’m fascinated by (much to the chagrin of people I normally try to talk about it with), and its great to see a well-written (and often updated) blog on this topic.

    Anyway, wouldn’t this proposed rule be a fox-guarding-the-henhouse type issue? If the convention process was meant to sidestep Congress (a federal body) by allowing states to fight encroachment of the federal government, would allowing Congress to determine what an “appropriate” amendment really serve that purpose? If Congress is presented with, to use your example, a term limits amendment by a constitutional convention, what’s to keep Congress from declaring that its out of bounds? Wouldn’t it be wiser, at least in the context of a constitutional convention, to require Congress to choose one form of ratification or the other? Or should we just trust political pressure to ensure that Congress would take its duties seriously in such a situation?

  2. mstern says:

    You ask an excellent question. It is true that there is a problem with giving Congress a role in judging the validity of proposed amendments, but it is not a problem caused by the rule that I propose. The problem exists because Article V requires Congress to take an affirmative action before a proposed amendment can be submitted for ratification.

    Note that an analogous problem exists with respect to calling a convention, since Article V also requires congressional action for that. Unlike submitting an amendment for ratification, which requires Congress to make a policy choice, calling a convention is a ministerial act, but Congress still has to make a judgment that it is received 34 applications, which inevitably requires it to decide what counts as a valid application.

    Theoretically, I suppose Congress could pass a resolution saying that all future amendments proposed by a convention will be ratified by one method or the other so that any proposed amendment could proceed to ratification without further congressional action. But that hasn’t happened and it is exceedingly unlikely that it ever would. Plus such a resolution would make people even more worried about a runaway convention than they already are.

    One could argue that the spirit of Article V requires Congress to submit all proposed amendments for ratification, even if there is some dispute over their validity. But that principle shouldn’t apply where the states have clearly marked the permissible boundaries of the convention and the convention has clearly transgressed those boundaries. That’s why the proposed rule would work best in the context of a single amendment convention. If the convention is required to propose the exact amendment specified by the states in their applications, there is no room for debate about what is in or out of scope. Of course, Congress could still fail to act on the ratification method- but that is not a problem caused (or exacerbated) by the rule.

  3. To both mstern and Mark M.:

    If one-half of one percent of Congress; albeit, the government, had the wherewithal of our Founders, they could be trusted with the responsibilities which you gentlemen opine here. That is not the case, they do everything they do for amassing wealth and power, and ensuring the status quo remains relatively undisturbed. IMHO they are irresponsible.

    Article V is perhaps the best one-sentence statement ever. There’s no confusion until one begins constructing, and romancing words — trying to change the meaning to suit their own purposes. No, do not do that!

    The PURPOSE of Congress reviewing the applications is simply to get a leg up on the potential ramifications … sigh, we’re going to have to change our wicked, wicked ways. I would say to give them a count, but since they’ve never done this from application one, this is farthest from their mind. There’s nothing in Article V which even hints that Congress has any other responsibility than collect and disburse the proposed amendments as they meet the 34 several states requirement as mandated. Over 750 applications from 49 of the 50 states have been identified, photographed and cataloged, and placed on display at http://www.foavc.org/ (Something Congress seemed to miss in their long list of responsibilities!). Congress has always inhibited the process; they were sued twice in federal court to force them to make the convention call, but managed to get those jurists to determine it was a “political question.” Now, Congress and the Justice Department are playing a game of tennis — back and forth, back and forth — continuing to protect the status quo.

    BTW, Runaway Convention is a ruse.

    Congress may never have the opportunity to do anything more about these responsibilities because, if you gentlemen haven’t noticed, there’s grass roots groundswell of opposition across the breadth and width of our nation today — some have identified it as the beginning of a second Revolution. Time will tell.

    See: http://www.article-v-convention.com/files/28th-amendment.html and the rest of the website with stories, articles, facts and links to enjoy.

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