Making Use of the Constitution: A Term Limits Amendment

This article originally appeared in the Wall Street Journal.

In the wake of this latest vapid political season, it is hard to remember that only two years ago our midterm elections were driven by a distrust of Washington so intense as to produce a “revolution.” Yet on one bellwether issue—term limits—distrust continues unabated, calling into question the contention of the administration and its friends in the media that Republicans misread the returns of 1994.

In fact, despite little media attention, voters in 15 states last fall, thanks to prodigious grassroots efforts, had their first opportunity to move toward limiting the terms of their congressional delegations through constitutional amendment. The amendment route was made necessary in 1995, recall, after a sharply divided Supreme Court threw out the limits that voters in 23 states had placed on their congressional delegations. Undaunted by that decision, ordinary Americans, tired of being ruled by the professional class in Washington, have simply rededicated themselves to restoring citizen government—through constitutional amendment, if that’s what it takes.

They are calling upon Congress, pursuant to Article V of the Constitution, to send a term-limits amendment to the states for ratification. But at the same time, they are not so naive as to believe that Congress is likely to limit itself voluntarily. Indeed, even a weak term-limits measure lost four times in the current “radical” House—the only plank in the Contract With America to lose there—while the Senate never even took a vote. Given Congress’s conflict of interest, therefore, term-limits supporters are also pursuing the second course that Article V authorizes: “on the Application of the Legislatures of two thirds of the several states, [Congress] shall call a Convention for proposing Amendments.”

In some places, however, that second course has raised concerns on the far right, to the surprise of some, around which the political establishment has rallied, to the surprise of no one. Thus, in Colorado the call for a convention is opposed by a group called Citizens Against Constitution Tampering, while in Arkansas a suit has been brought to block “the destruction of the Federal Constitution as we know it.” Perhaps the greatest opposition has arisen in Idaho, where nearly 60 percent of the voters in 1994 elected to limit the terms of every office from congressman to school board trustee. There, the John Birch Society has led the way, followed by Republican Gov. Phil Batt, Senate President Pro Tem Jerry Twiggs, Congresswoman Helen Chenoweth, and others. And in each case the fears are the same: “the merits of term limits aside, we are frightened that a ‘Constitutional Convention’ might do irreparable harm to the Constitution, especially if it should be a ‘runaway’ convention. The Constitution has served us well for over 200 years. Why tamper with it, even in the name of term limits?”

Those fears are not new. In fact, they were heard the last time citizens felt they needed to take things into their own hands —early this century, when the political establishment repeatedly resisted efforts to bring about the direct election of senators. One state short of the two-thirds needed, Congress finally caved and voted out the Seventeenth Amendment for ratification, but not before muddying the constitutional waters by planting fears about a runaway “Constitutional Convention,” fraught with peril because unlimited by the Constitution itself. Those fears today are part of the conventional wisdom on the matter. Yet like so much conventional wisdom, they are as baseless now as they were then.

To begin with the name, the Constitution provides not for a “Constitutional Convention”—akin to the 1787 convention—but for a “Convention for proposing Amendments” to the Constitution—and the difference is not trivial. True, such a convention would have to order its own affairs by making its own rules. And it is true also that a convention would be “unlimited” substantively: it is doubtful, that is, that Congress could limit the agenda of a convention to one or a few issues, like term limits or a balanced-budget amendment; and there is no part of the Constitution, including even the amendment provisions themselves, that a convention might not try to amend.

But that is not the point. While a convention’s agenda cannot be limited, a convention has no authority whatever to amend the Constitution. A convention can only “propose.” And a proposal is just that. No proposal becomes constitutional law until it is ratified. And ratification is another matter entirely.

Thus, there is all the difference in the world between a free-standing “Constitutional Convention”—authorized to write even its own rules of ratification—and a convention for proposing amendments to an existing constitution that already prescribes how any such amendments are to be ratified. In no way does Article V authorize the former. Any proposals to amend the existing Constitution that proceed by either of the methods prescribed in Article V must be ratified by the procedures prescribed there as well—however far-reaching those proposals may be. Indeed, even a proposal to change the ratification procedure itself must be ratified by the existing ratification procedure.

Turning to ratification, then, if proposing amendments is difficult, ratifying them is extraordinarily difficult. Indeed, it is no accident that in more than 200 years, only 27 amendments have been ratified (10 at the outset, and of the 17 others, the 21st amendment cancelled the 18th), for ratification must be by the concurrence of “the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.” Given the unlikelihood of the latter method, the numbers alone tell the story. With Nebraska as the only state with a unicameral legislature, it takes majorities in 75 of the 99 state legislative bodies in America to ratify any change in the Constitution. Looked at from the other direction, it takes only 13 such bodies to block any change. Thus, term limits supporters who fear a “runaway” convention have simply not done their ratification arithmetic.

Are we really to believe that a runaway convention could get its schemes past the public? Are there not 13 bodies in this land that would rise to block all but the most popular of proposals? Less than a generation ago, not even the Equal Rights Amendment—which enjoyed wide support, although no one knew quite what it meant—was able to make it through the ratification process.

It is not for nothing that Article V was put in the Constitution. It was meant to be used—but not for light and transient reasons. By overwhelming majorities, averaging 75 percent, Americans of every creed and color have come to understand that there is something fundamentally wrong with a system that has resulted, under modern conditions, in our being ruled year in and year out by a class of professional politicians. That situation is neither healthy nor right in a limited, constitutional democracy. Fortunately, the Framers provided a way to do something about it, a way to make substantial change while ensuring that our fundamental principles remain in place.

Roger Pilon is director of the Cato Institute’s Center for Constitutional Studies and is co-editor, with Edward H. Crane, of “The Politics and Law of Term Limits.”