Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention
24 Pages Posted: 4 Aug 2011 Last revised: 13 Aug 2011
Date Written: August 3, 2011
Congress has proposed every one of the twenty-seven amendments to the United States Constitution. Even though the First Congress proposed a number of amendments that limited congressional powers or privileges (namely the Bill of Rights and the amendment to limit congressional pay raises), subsequent Congresses have shown little interest in following this example. They have proposed amendments that significantly expand congressional power (such as the Sixteenth Amendment that authorized a federal income tax) but have proposed none that significantly limit congressional power or prerogatives. Recent Congresses, for example, have declined to propose amendments to require a balanced budget or impose term limits. This would have come as no surprise to the Framers, who understood that Congress could not be expected to provide a check on itself. The system they designed not only divided powers within the federal government, but also between the federal and state governments to provide a “double security” for the rights of the people. As James Madison explained in The Federalist No. 51, under this system “[t]he different governments will control each other.” For this reason they included in Article V of the Constitution an alternative method for proposing constitutional amendments, one that did not require congressional acquiescence. The convention method of amendment gave the states a constitutional road to bypass Congress when it was necessary to “erect barriers against the encroachments of the national authority,” as Alexander Hamilton wrote in The Federalist No. 85.
However, uncertainties and fears regarding the convention method have prevented its successful use to propose constitutional amendments. In particular, many have feared that an Article V Convention might stray far from the concerns that caused the states to call for it. The states might desire to set forth on the road to a specific constitutional reform, but a so-called “runaway convention,” it is suggested, could take an unforeseen and dangerous detour from the intended path, proposing radical or ill-considered amendments to the Constitution.
In this Article, I will evaluate the risks of a runaway convention in light of the constitutional text, structure, and purpose of Article V and will suggest why these risks are much smaller than often suggested. I will also suggest additional safeguards to minimize any concerns regarding a runaway convention. In combination with the inherent protections of Article V, such safeguards can ensure that the constitutional road to reform will be clearly defined and well-marked, and may be traveled safely by the states when they must act to impose limitations on a “runaway Congress.”
Professor Mary Margaret Penrose has written a response to this article See Conventional Wisdom: Acknowledging Uncertainty in the Unknown,which can be found on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1905548.
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