Isabella Carter
The United States Constitution outlines two methods for proposing amendments. One of these is a convention, also referred to as an Article V Convention, where two-thirds of the state legislatures apply for a convention to propose amendments. This method has never been used, and there are concerns about the potential implications. The other method is a two-thirds vote in both houses of Congress, which has been used to propose 33 amendments, 27 of which have been ratified.
| Characteristics | Values |
|---|---|
| Amendment proposal method | Convention to propose amendments to the United States Constitution |
| Other names | Article V Convention, State Convention, Amendatory Convention |
| Authorized by | Article Five of the United States Constitution |
| Proposal requirement | Application by two-thirds of State legislatures (34 out of 50) |
| Proposal ratification | Ratification by three-fourths of the states (38 out of 50) |
| Previous usage | Never been used; 33 amendments proposed by Congress, 27 ratified |
| State-level usage | Over 230 constitutional conventions assembled at the state level |
| Purpose | Establish a balance between pliancy and rigidity in the amendment process |
| Previous concerns | Unanimous consent of all 13 states required for national government action |
| Amendment origin | Governors submit to State legislatures or call for a convention |
| Amendment ratification process | Archivist of the United States administers the process |
| Amendment finalization | Formal proclamation by Archivist certifies amendment as valid |
| Amendment concerns | Unpredictable convention outcomes, lack of ground rules, potential influence by interest groups |
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What You'll Learn
The Article V convention method
The inclusion of this method in Article Five was due to concerns that Congress would block amendments favorable to the states. At the 1787 Constitutional Convention, eight state constitutions included an amendment mechanism. However, this required the unanimous consent of all 13 states for the national government to take action, which proved unworkable. The newly written Constitution sought to address this problem by allowing states to apply to Congress for a convention to propose amendments.
Some scholars have speculated that states may prod Congress into proposing an amendment on a particular matter by applying for an Article V convention on that issue. However, there is ongoing debate regarding the scope of an Article V convention. Some commentators argue that states may determine the scope by applying for a convention on a specific subject or group of subjects. Others argue that Article V permits states to apply for a convention on a particular amendment text, with Congress then obliged to call a convention only on the issues in the state applications. On the other hand, some scholars argue that the text of the Constitution provides only for a general convention, not limited in scope to considering amendments on a particular matter.
There are concerns about the potential consequences of an Article V convention. Some legal experts and jurists have warned that states cannot control a constitutional convention, and that calling one could open up the Constitution to significant, unpredictable, and harmful changes. A convention could set its own agenda, possibly influenced by powerful interest groups, and there is no guidance in the Constitution on the ground rules for a convention.
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The role of Congress
The United States Constitution outlines two methods for proposing amendments, as per Article Five. One of these methods involves Congress, which can propose amendments with a two-thirds majority vote in both the House of Representatives and the Senate. This method has been used 33 times, with 27 of these proposals being ratified by three-fourths of the states.
The other method, which has never been used, is a convention of the states, also called an Article V Convention or an amendatory convention. This method involves Congress calling a convention upon the request of two-thirds of the state legislatures (34 out of 50). This convention can then propose amendments, which become law when ratified by three-fourths of the states.
The reason for this two-step process, with Congress calling the convention and the convention proposing the amendment, is to balance the power to amend the Constitution between Congress and the states. Some delegates at the 1787 Constitutional Convention wanted to circumvent the national legislature, believing it could abuse its power and block amendments favourable to the states. However, others opposed giving the states sole power to propose amendments, and so the final language gave states the power to apply to Congress for a convention.
There is debate about whether Congress must call a convention when two-thirds of states request one, with some scholars arguing that Congress has no power to deliberate on whether to call a convention once it receives the requisite number of applications. There is also debate about whether states can determine the scope of a convention by applying for one on a specific subject or group of subjects, or whether the Constitution only provides for a general convention.
Despite the possibility of calling an Article V Convention, some have expressed concern about doing so, including former justices and legal scholars. They argue that there is no way to limit the actions of a convention, which could set its own agenda and write its own rules, potentially leading to significant and unpredictable changes to the Constitution.
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The role of state legislatures
The United States Constitution outlines two methods for proposing amendments. The first method, which has been used to propose 33 amendments, 27 of which have been ratified, involves a two-thirds vote in both houses of Congress. The second method, which has never been used, is called an Article V Convention, a state convention, or an amendatory convention. This method involves two-thirds of state legislatures (34 out of 50) applying to Congress to call a convention for proposing amendments.
State legislatures also play a role in ratifying proposed amendments. After Congress proposes an amendment, it is sent to the states for ratification. For an amendment to become law, it must be ratified by three-fourths of the states (38 out of 50). This can be done through the state legislatures or by conventions within the states.
The involvement of state legislatures in the amendment process is designed to strike a balance between pliancy and rigidity, as James Madison wrote in The Federalist No. 43. It empowers states to drive constitutional reform and ensures that the national government cannot act without their consent, addressing the flaw in the Articles of Confederation, which required unanimous consent from all 13 states.
However, the potential unpredictability of an Article V Convention has raised concerns among legal scholars and jurists. There is a fear that once a convention is convened, it could write its own rules, set its own agenda, and make unpredictable changes to the Constitution. This uncertainty has led to hesitancy in utilizing the Article V Convention method, despite its potential to provide a platform for states to propose amendments directly.
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The ratification process
The first method, which has been used for all 27 ratified amendments, involves a two-thirds majority vote in both the House of Representatives and the Senate. Once an amendment is proposed by Congress, it is sent to the states for ratification.
The second method, which has never been used, is the focus of this discussion. A constitutional convention can be called when two-thirds of state legislatures (34 out of 50) apply to Congress. This process bypasses the national legislature and allows states to propose amendments directly. However, it has raised concerns about potential unpredictability and the influence of political considerations.
After an amendment is proposed by either method, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is responsible for administering the ratification process. The Archivist has delegated many duties to the Director of the Federal Register. They follow the procedures and customs established by the Secretary of State and the Administrator of General Services, who previously performed these duties.
When a state ratifies a proposed amendment, it sends the Archivist an original or certified copy of the state action. The Office of the Federal Register (OFR) examines these documents for authenticity and legal sufficiency. If they are in order, the Director acknowledges receipt and maintains custody.
An amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50). The OFR verifies the required number of authenticated ratification documents and drafts a formal proclamation for the Archivist to certify the amendment's validity. This certification is published in the Federal Register and U.S. Statutes at Large, serving as official notice to Congress and the nation that the amendment process is complete.
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The potential risks
A convention to propose amendments to the United States Constitution, also referred to as an Article V Convention, is one of two methods authorized by Article Five of the United States Constitution whereby amendments to the Constitution may be proposed. The Article V convention method has never been used.
However, several risks are associated with holding a constitutional convention. Here are some potential risks to consider:
Lack of Precedent and Clear Guidance
The last constitutional convention took place in 1787, and there has never been a federal constitutional convention since. This lack of precedent means there is limited guidance on how a modern convention would operate. The Constitution provides no details on the ground rules, leaving open questions about the delegate selection process, the number of delegates per state, and the voting requirements for approving amendments.
Potential for Radical and Harmful Changes
Without clear authority above a constitutional convention, there is a risk that it could make broad and sweeping changes to the Constitution. The convention could set its own agenda and potentially ignore the language of state resolutions or congressional resolutions. The courts may view legal challenges as "political questions," declining to intervene or provide recourse.
Economic Risks
A constitutional convention could propose amendments that have significant economic implications, such as a balanced budget amendment. Requiring a balanced budget regardless of economic conditions could lead to recessions, job losses, and difficulties in funding key federal functions like Social Security.
Unpredictability and Politicization
A constitutional convention would likely be a highly politicized event, with powerful interest groups influencing the process. The results of such a convention are impossible to predict, and there is no guarantee that the states or Congress would be able to control its outcomes.
Alteration of Ratification Processes
The 1787 convention set a precedent for ignoring existing ratification processes and establishing new ones. A modern convention could potentially do the same, bypassing the requirement for ratification by three-fourths of the states and proposing alternative approval methods.
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Frequently asked questions
A convention to propose amendments to the United States Constitution, also referred to as an Article V Convention, is one of two methods authorized by Article Five of the United States Constitution whereby amendments to the Constitution may be proposed.
On the application of two-thirds of the State legislatures, Congress shall call a convention for proposing amendments.
Amendments become law only after ratification by three-fourths of the states.
No, none of the 27 amendments to the Constitution have been proposed by a Constitutional Amendment Convention.
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