Amending the Constitution

For the past several decades, and especially over the past eight years, there have been growing calls by liberals and conservatives alike for an Article V convention of states to propose amendments to the Constitution. Article V of the Constitution states,

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress…”

Substantive reasons for calling a convention differ among those on the Right and Left; historically, liberals have wanted to enshrine in the Constitution greater powers for the federal government and certain guaranteed rights for various favored groups, although since the 1970’s they have largely preferred to work through the courts and avoid amending the Constitution altogether. Conservatives, meanwhile, have sought to clarify portions of the document to make it more difficult for activist judges to stray from the text and original understanding of the Constitution, as well as to impose a few good-government policy reforms—namely, a requirement for Congressional term limits and a Balanced Budget Amendment.

I support both these proposals, and others. But I worry when I see more and more conservatives endorsing a convention of states to bypass the normal amendment process. The Constitution should only be amended when absolutely necessary, and a convention carries with it great risks—one of the primary reasons why none have been held since the one in 1787 that gave birth to the Constitution.

There is nothing in the text of Article V, or anywhere else, to definitively limit the power of a convention to propose amendments. Such a gathering, once called to order, could in theory discuss any changes to the Constitution—a Balanced Budget Amendment or term limits, to be sure, but also a repeal of the First or Second Amendments, an enshrining of the administrative state as a fourth branch of government, an outright rejection of federalism, or a dramatic expansion of the powers of the legislative and executive branches. All would be on the table, once an attending state moved to discuss such changes.

Proponents of a convention argue that any given state could, when passing a resolution calling for a convention, stipulate that only certain topics may be discussed. But the constitutionality of such a move, or the ability of some states to enforce it against others who might wish to propose amendments outside those restrictions, has never been tested. Considering the stakes involved—a wholesale, formal rewrite of the entire Constitution, potentially transforming our nation beyond recognition—the risk of a convention is just too great.

The Constitution is a brilliant document, written by geniuses. It is also flawed, as are all things created by man. The Framers understood that, which is why an amendment process was added in the first place, and there are certain issues for which the process is undoubtedly necessary. But a convention of states is a process of last resort, an escape hatch to be used only in times of emergency. As serious as things are today, they are not that serious, and hopefully never will be.