Two recent opinion pieces, on Feb. 2 and Feb. 10, argue that an Article V Convention of the States (or con-con) cannot stay limited and could seriously damage the U.S. Constitution. While I agree with Reps. Judy Boyle, R-Midvale, and Ilana Rubel, D-Boise, and local law professor McKay Cunningham that amending the U.S. Constitution is not something to take lightly, neither of their pieces illuminate the history surrounding the people’s call for a Convention of the States; nor do they accurately explain the purpose of the convention clause in Article V.
Article V states, “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of two thirds of the several States, shall call a Convention for proposing Amendments, which ... shall be valid ... when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.”
The state convention option is simply meant to be another route toward proposing an amendment. Once an amendment is proposed, either by Congress or through the states, it must still be ratified by three-fourths of the states or by conventions in three-fourths of the states. A convention is not the final say.
In fact, a constitutional convention (con-con) and an Article V Convention of States are not the same thing. The convention of 1787, when our current Constitution was drafted, was not convened due to any clause in the Articles of Confederation, and its delegates did not supersede the power given to them by their states. In short, the argument that an Article V Convention of States is a con-con is a misrepresentation of the historical record.
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Most importantly, the Convention of States option was written into our Constitution because our Founding Fathers dared to ask could Congress itself someday be the problem. Isn’t it conceivable that Congress itself might be the problem when it comes to a balanced budget amendment or addressing corporate personhood legislation? Has Congress ever been unwilling to act before?
Yes. The 17th, 21st, 22nd and 25th amendments all started as a movement pursuing an Article V Convention of States. However, when the number of state applications got close to the required two-thirds (34) required for calling a convention, Congress proposed the amendment. When the people want an amendment, they call for a Convention of States to force the issue.
While it is true that Justice Scalia and Lawrence Tribe warned against an Article V convention, both the U.S. Department of Justice and the American Bar Association have submitted reports supporting a limited Article V convention. And although we have no exact precedent, over 230 state constitutional conventions have been held without one of them going off-topic. From the DOJ report, “Law cannot execute itself. The people and their officers execute the law; and when enough of them choose to disregard it, law is ineffective.”
Jason Smith is a full-time lecturer of mathematics at Boise State University.