Exploring Constitutional Amendments: Convention Required?

The process of amending the United States Constitution is a complex and time-consuming endeavour. The Constitution provides two methods for proposing amendments: through Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures. While there have been over 600 state constitutional conventions, there has never been a federal constitutional convention to propose amendments. The question of whether a convention can be limited to a single issue or have the power to propose anything it sees fit is a subject of debate among legal scholars and has never been tested. The amendment process, outlined in Article V of the Constitution, also includes the role of the Archivist of the United States, who administers the ratification process, with amendments becoming operative once ratified by three-fourths of the states.

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The process of amending the US Constitution

The United States Constitution was written to be a durable document, with a challenging amendment process. The authority to amend the Constitution comes from Article V of the Constitution, which outlines two methods for proposing amendments. Firstly, two-thirds of both houses of Congress can vote to propose an amendment. Secondly, two-thirds of state legislatures can apply for a Constitutional Convention to propose amendments.

Despite calls for a Constitutional Convention, there has never been one at the federal level. Over 600 state constitutional conventions have been held, with little evidence of exceeding their scope. The process of amending the Constitution is challenging and time-consuming. A proposed amendment must pass with a two-thirds majority in both the House of Representatives and the Senate. After this, it is sent to the states for ratification.

The President does not have a constitutional role in the amendment process, and their approval is not required. Once an amendment is approved by Congress, it is sent to the Archivist of the United States, who administers the ratification process. The Archivist has delegated many duties to the Director of the Federal Register, who examines ratification documents for legal sufficiency and authenticity.

When the required number of states ratifies an amendment, the Director acknowledges receipt and maintains custody of the documents. A proposed amendment becomes part of the Constitution when ratified by three-fourths of the states (38 out of 50). The Archivist then certifies the amendment as valid, and it becomes official with no further action required. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice of the amendment's completion.

Article V Convention: scope and limitations

Article V of the U.S. Constitution outlines the process for amending the Constitution. It states that two-thirds of both houses of Congress can propose amendments, or, on the application of two-thirds of state legislatures (34 states), Congress shall call a convention for proposing amendments.

The scope of an Article V convention is primarily to propose amendments to the Constitution. The convention is not "plenipotentiary" or "constitutional" in nature, meaning it must follow the rules of the Constitution and cannot change the ratification procedure. The convention elects its own officers and sets its rules, but it cannot propose to replace the Constitution. It is bound by its prescribed agenda and any recommendations outside of this scope have no legal force.

There is debate about whether an Article V convention can be limited to a single issue or subject matter. Law professor Michael Stokes Paulsen argues that such a convention would have the "power to propose anything it sees fit", while others, like Michael Rappaport and Robert Kelly, believe a limited convention is possible. The scope of the convention is set by the number of successful applications (34 or more), and ideally, Congress should reproduce this scope in its call.

The potential limitation of an Article V convention is the concern that it could become a "runaway convention", exceeding its scope and authority. However, for any amendments to become part of the Constitution, they must be ratified by three-fourths of the states (38 states), which is more than the number required to call the convention. This acts as a check on the convention's power.

In summary, an Article V convention's scope is to propose amendments within the framework of the Constitution, while the limitation is the requirement for a high threshold of state ratification to adopt any proposed changes.

Runaway convention: a convention that exceeds its scope

The United States Constitution provides a mechanism for states to propose constitutional amendments, as outlined in Article V. Amendments may be proposed either by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures (34 out of 50 states).

The idea of a "runaway convention" or a "runaway scenario" is a concern that an Article V convention could exceed its scope and become inherently sovereign. This scenario suggests that an amendments convention could "run away" and attempt to propose amendments beyond its mandate or the desires of the applying states. The fear is that this could lead to a re-writing of the Constitution.

The "runaway convention" argument was popularized in the 1960s and 1970s by left-leaning politicians, judges, and activists who aimed to block amendments overruling liberal Supreme Court decisions. Today, it is used by both left-wing and right-wing convention opponents as a "rhetorical ploy to terrify sensible people," according to Professor Ann Diamond.

However, it is important to note that this scenario is considered a myth by some, as there is historical precedent and established procedures for state constitutional conventions. Over 600 state constitutional conventions have been held to amend state constitutions, with little evidence of scope exceedance. Additionally, any amendments proposed by a convention would still need to be ratified by three-fourths of the states (38 out of 50), which is more than the number required to call for a convention.

While there has never been a federal constitutional convention since the original one, there have been over 230 state-level constitutional conventions in the United States.

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Role of Congress in calling and controlling a convention

The Constitution of the United States was written to endure for ages to come, and as such, the process of amending it is intentionally difficult and time-consuming. The Constitution provides that an amendment may be proposed either by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures.

Congress has the power to call a convention but no further power to control or regulate it. This has led to concerns about a potential ""runaway convention" that attempts to exceed its scope. However, for any amendments to become part of the Constitution, they must be ratified by three-fourths of the states, which is more than the number of states required to call a convention.

There is also debate about whether states can determine the scope of an Article V convention by applying for a convention on a specific subject or group of subjects. Some scholars argue that Article V permits states to apply for a convention on particular amendment texts, while others argue that the text of the Constitution only provides for a general convention, not limited in scope to a particular matter.

In practice, no amendment of the 27 amendments to the Constitution has been proposed by a constitutional convention. The closest the states have come to satisfying the threshold was in 1911, when 29 states had Article V convention applications for an amendment providing for the direct election of senators. By contrast, 33 amendments have been proposed by a two-thirds vote in both houses of Congress, with 27 of these being ratified by three-fourths of the states.

While there have been calls for an Article V convention, particularly by state governments and some notable individuals, there has never been a federal constitutional convention since the original one.

State legislatures' role in the amendment process

The United States Constitution was crafted to be a durable document, with a challenging amendment process. The authority to amend the Constitution comes from Article V of the Constitution. The amendment process can be initiated by Congress, with a two-thirds majority vote in both the House of Representatives and the Senate. Alternatively, it can also be triggered by a constitutional convention, which two-thirds of the state legislatures can call for.

State legislatures play a crucial role in the amendment process. They have the power to initiate the process by calling for a constitutional convention. While this has never happened in US history, it remains an option. State legislatures have generated more than 80% of the constitutional amendments considered and approved annually across the country.

The legislatures are also involved in the ratification process. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), submits the amendment to the states. Governors then formally submit the amendment to their state legislatures. The legislatures then consider and vote on the proposed amendment. For an amendment to become part of the Constitution, it must be ratified by the legislatures of three-fourths of the states (38 out of 50 states). This requirement ensures that any change to the Constitution reflects the will of a significant majority of the country.

In most states, voter ratification of legislature-crafted amendments requires a simple majority vote. However, some states, like New Hampshire, Florida, and Colorado, have set a supermajority threshold. Additionally, a few states, such as Hawaii, Minnesota, Tennessee, and Wyoming, require amendments to be approved by a majority of voters in the entire election.

State legislatures also play a role in citizen-initiated amendments. In all but one state, citizen-initiated amendments can be placed on the ballot without the legislature's approval once the required signatures and legal requirements are met. However, in states like Massachusetts, these amendments must secure the support of a portion of the legislature before appearing on the ballot. Citizen-initiated amendments, once on the ballot, typically require ratification by a simple majority of voters, though some states mandate a supermajority.

In conclusion, while a constitutional convention called by state legislatures has never occurred, state legislatures are integral to the amendment process. They have the power to initiate the process and are responsible for ratifying proposed amendments. The involvement of state legislatures ensures that any changes to the Constitution reflect the diverse perspectives and interests of the country's citizens.

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