Those of us who are upset at how "constitutional law" has gotten far away from the text of the Constitution have more options than just hoping the judiciary tosses us an occasional bone and otherwise writing law review articles and op-eds. We can also amend the Constitution!
Indeed, the Framers provided a method of constitutional amendment that is easy to understand (if not to execute, at least not since the New Deal Congress and FDR began de facto amending the Constitution without bothering to amend it de jure). Article V says that an amendment can be sent to the states for ratification upon approval by two thirds of both houses of Congress. In the alternative, two thirds of the state legislatures can call for an amending convention. Either way, the resulting proposed amendments must be ratified by three quarters of the states to take effect.
Hand-in-hand with the recent resurgence in limited-government ideas, various amendments have been floated -- by Tea Party activists, politicians, academics, and policy analysts. Randy Barnett's "repeal amendment" -- that a vote by two thirds of states can repeal federal law -- is one. The balanced budget amendment is another.
Congress is unlikely to ever amass a two-thirds majority in favor of limiting its own power, however, so the state-called convention idea looks attractive. The problem is that many conservatives and libertarians are afraid of a so-called "runaway" convention, with amendments that would eviscerate the Constitution in a way Congress and the courts haven't yet managed. Insert your own nightmare scenario: nationalization of industry, required gay marriage, prohibition of private schools, Keith Olbermann as NFL-Commissioner-for-Life -- you name it, somebody has invoked it to argue against amending conventions.
These fears have always seemed overblown to me. I mean, if the American people can propose and ratify amendments that constitutionalize socialism (or whatever), then we've lost the political culture ballgame already and might as well go seasteading in Galt's Gulch.
And now I have backup for my instincts! Our friends at the Goldwater Institute, in the course of a grand project masterminded by Nick Dranias (the director of their center for constitutional government), are publishing a series of articles by Robert G. Natelson (retired from the University of Montana Law School) regarding constitutional amendments via convention. The first two are available online and the third one will be there soon.
Here are the key points:
- An amendments convention is the ultimate guarantor of state sovereignty. History and law support states limiting the convention to specific topics. Delegates to the convention are bound as agents of the states to stay within the scope of the applications that trigger it. And 38 states must ratify whatever the convention generates as a proposed amendment. In short, the states initiate the process, the states control its subject matter, and the states ratify its product.
- The amendments convention concept is not radical. Washington, Madison, Jefferson and Hamilton all agreed that states should use the Article V process to correct errors in the Constitution and rein in the federal government if it oversteps its bounds. Madison even intervened during the nullification debates of the 1830s to chide the states that they should be invoking the Article V process to regain control over the federal government.
- The convention will not run away. Any proposed constitutional amendment yielded by the convention requires ratification by 38 states. During the constitutional convention of 1787 the Founders rejected language that would have allowed Article V to establish a foundational convention, substituting language that requires any convention to operate within existing constitutional limits.
- There is nothing to lose from an amendments convention because no matter which party controls Congress, the status quo is a runaway federal government.