Who’s Afraid of a Constitutional Amendment on Term Limits?

In this bland 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.

Voters in 15 states next month will have their first opportunity to move toward limiting the terms of their members of Congress through a constitutional amendment. The amendment route was made necessary last year after a sharply divided Supreme Court threw out the term limits that voters in 23 states had placed on their Congressmen. Undaunted by that decision, supporters of term limits, tired of being ruled by the professional class in Washington, have rededicated themselves to restoring citizen government—through a 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 Republican 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.” Initiatives on 15 ballots would require state legislators to call for a convention for the purpose of proposing a term limits amendment.

In several states, however, the call for a convention has raised concerns on the far right, around which the political establishment, eager to defeat term limits, has rallied. Thus, in Colorado the call 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% 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 in opposing a convention, followed by Gov. Phil Batt, Senate President Pro Tem Jerry Twiggs and Congresswoman Helen Chenoweth, Republicans all.

In each case the fears are the same: The merits of term limits aside, opponents are frightened that a “runaway” convention might do irreparable harm to a Constitution that has served us well for more than 200 years. Why open that possibility, they argue, 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, who then were elected by state legislatures. One state short of the two-thirds needed, Congress finally caved and sent the 17th Amendment to the states for ratification, but not before muddying the constitutional waters by planting fears about a runaway convention. Yet those fears 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, such as term limits or a balanced budget amendment; 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. But ratification is another matter entirely.

Thus, in no way does Article V authorize a “Constitutional Convention.” Any proposal to amend the existing Constitution that proceeds by either of the methods prescribed in Article V must be ratified by the procedures prescribed there as well. 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 canceled 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.” 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 as few as 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 legislative 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%, Americans 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.”