Article V of the Constitution of the United States
Wednesday, April 15, 2009
by Ken Stremsky
Thanks for your fast response to my 'vox Populi' of 13 April.
By the way, what do you think it would take to get an Article V Convention held?
Mr. Berg-Andersson responds:
Just so everyone who might be reading this is clear about that to which Mr. Stremsky is referring, here is the actual text of Article V of the Constitution of the United 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 one or the other mode may be proposed by the Congress; Provided that... no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
[NOTE: I purposely left out of the above quotation the provision in Article V (which appears where I have placed the ellipsis [...]) dealing with no Amendment being permitted- prior to the year 1808- which would adversely affect the legality of the International Slave Trade (Article I, Section 9, clause 1) or the requirement that the distribution of revenue derived from a Federal "Capitation, or other Direct, Tax" be based on the Apportionment of seats in the U.S. House of Representatives amongst the States as determined by the most recent decennial Census (Article I, Section 9, clause 4). 1808, obviously, is now more than 200 years ago and, thus, these restrictions have, since, been rendered moot. My intention above was to provide the actual language of Article V as it currently remains in force in 2009- REB-A]
What Mr. Stremsky is referring to as "an Article V Convention" is an Amending Convention called by Congress upon the application of at least 2/3 of the States (which, with 50 States currently in the American Union, would be no less than 33 in number); any Amendments proposed by such a Convention would still have to be ratified by 3/4 of the States (currently 38 of the entirety of 50 States)- either by the Legislatures of the States or by popular Conventions elected for the purpose in each State (and the language of Article V appears to mandate that it would be Congress, not the Amending Convention itself, that would have the power to decide which method of ratification by the States would be used).
I actually touched upon this question regarding the possibility of an Article V Amending Convention in my Commentary on Electoral College reform posted after the (in?[;-)])famous Presidential Election of 2000 (in fact, this was posted only a few days after George W. Bush and Dick Cheney had been first sworn as President and Vice-President respectively). In that piece, I outlined- under the subhead 'SECOND CONSTITUTIONAL CONVENTION'-
the only four methods of Amending the U.S. Constitution provided by that document's Article V:
1. 2/3 of each house of Congress voting out a proposed Amendment which is adopted when ratified by the Legislatures in 3/4 of the States [the usual route of amending the Constitution, used for all but one of the 27 Amendments to the U.S. Constitution adopted so far]
2. 2/3 of each house of Congress voting out a proposed Amendment which is adopted when ratified by popular Conventions in 3/4 of the States [so far, used only once- with the adoption of the 21st Amendment repealing the 18th "Prohibition" Amendment in 1933]
3. 2/3 of the States applying to Congress for a national Convention to propose Amendments, none of which will be considered adopted unless ratified by the Legislatures in 3/4 of the States [heretofore never utilized]
4. 2/3 of the States applying to Congress for a national Convention to propose Amendments, none of which will be considered adopted unless ratified by popular Conventions in 3/4 of the States [also heretofore never used]
I then went on to note that
3. and 4. above have never been resorted to, in part, because of technical questions regarding the legal form of the applications by the States to Congress for such a national Amending Convention (for example, does the wording in said applications received from the several States have to be more or less exact in order for Congress to count 2/3 of the States having so applied?) but also, in part, because of a pervasive "Fear of Freedom" in all corners of the political spectrum of the good ol' USofA these days- not only among the more conservative "Republic, not a Democracy" crowd but also among liberals who fear that a runaway Amending Convention- perhaps dominated by conservative "Hard Right" activists- could, conceivably, gut the Bill of Rights and other Civil Liberties protections (at least as liberals have tended to interpret these). Aside from the complete lack of faith in Liberty in general- as well as the Union in particular- this "Fear of Freedom" evinces among many conservatives and many liberals (to whom I can only respond with the title of one of my earlier Commentaries- "a pox on both your houses!", the fact that 3/4 of the States still (whether through the ordinary Legislature or the extraordinary popular Convention) would have to then ratify anything proposed by such a potential runaway Amending Convention in order for it to ever become part of the Constitution is the one protective element included in Article V's having provided for just such an Amending Convention.
I then moved on to an even more intriguing possibility: a so-called "Second Constitutional Convention" which might completely rewrite the Constitution of the United States (in effect, replacing the 1787 fundamental document, as amended, with a wholly new one), perhaps such a Convention meeting even over the objections of the Congress of the United States and the President and other elements of the current system of Federal Government (and I want to make it most clear, again, that I was not then- nor am I now- actually advocating such a course: instead, I was here merely playing "Devil's Advocate" and- for purposes of providing as complete a picture as possible of the peaceful means and methods available to "We the People of the United States" when it comes to making alterations in the nature of Federal governance), about which I next wrote
There is, however, yet one more radical device through which the Electoral College COULD be reformed, if not outright abolished altogether, and that would be a Second Constitutional Convention which could- in theory- completely rewrite the fundamental legal document of the United States of America- including, naturally, its Electoral College provisions- without any recourse whatsoever to Article V of the present U.S. Constitution. The concept of just such a Second Constitutional Convention obviously brings the "Fear of Freedom" I mentioned in the preceding paragraph to nothing less than a fever pitch and, rather obviously, such a course is extremely unlikely in the present political climate in any event: one certainly does not see this potential reality on the horizon... Nevertheless, I throw it out there as yet another possible (however improbable) route to National Election Reform- if only to make this Commentary on the issues of such reform as complete as possible.
Most of you reading this will have read the words "without any recourse whatsoever to Article V of the present U.S. Constitution" I have written in the preceding paragraph and, perhaps, even have blanched; you could then (and properly so) argue that such a Second Constitutional Convention would be "extraconstitutional"- a nice way of really saying "constitutionally speaking, outright illegal". However, keep in mind the identity of those who "do ordain and establish this Constitution for the United States of America" (and I use the present tense of "ordain" and "establish" purposely- not just because that is the way they have to appear in a quotation from the document's Preamble- but as a reminder that the Constitution is ordained and established anew as long as it remains our Nation's fundamental charter...)- such ordination and establishment being done by "We the People of the United States". And what "We the People" have so ordained and established, "We the People" can likewise unordain and disestablish!
[NOTE: The underlining in that last sentence did not appear in the original, but I am providing it here and now so as to make my point therein most clear: this point being that, as "We the People" continue (as I argue in the quote above- and have also argued many times elsewhere on this website) to "ordain" and "establish" the Constitution- over and over again, each and every day- through the various and sundry collective results of our respective individual actions within the larger political community, so "We the People" ever retain the Right and the Power to potentially frame new government- even a new form of National government- as "We the People" might so see fit (and- by the way, if only as an intriguing aside here- I myself find it altogether interesting that the overall consternation I discern in the average American [regardless of Party or ideology] when it comes to any serious suggestion of redoing the current U.S. Constitution does not at all seem to attach to so remaking State Constitutions [indeed, as even a perfunctory perusal of this website's chart of the history of State Constitutions will certainly show, State Constitutions have- rather frequently, all things considered- been rewritten]; this is even more interesting when one considers that one's Rights and Liberties [the one thing that almost all Americans- whether conservative or liberal (though these will so very often differ as to the practical ramifications and application of such Rights and Liberties)- seem to most fear losing with a replacement for the current U.S. Constitution] are actually the more protected by one's State Constitution than the Federal [after all, to take one obvious example, your local police are- for the most part- enforcing State law; one who is arrested for an ordinary criminal offense would be held to answer before a State court]. The best answer as to why this might be so seems to be that- while State Constitutions are, more or less, "superstatutes" for just such ordinary purposes of State governance- the Federal Constitution acts as, in addition, a symbol of the American Nation [in essence, the U.S. Constitution is to the United States of America what the Crown is to the United Kingdom of Great Britain and Northern Ireland: just as most British find it hard to consider parting completely with the Monarchy, we Americans find it equally hard to part with a document so dedicated to "secur[ing] the Blessings of Liberty to ourselves and our Posterity". The very primal fear most at play here may well be the fear that a new Federal Constitution in toto may not prove nearly as much of just such a Blessing!)- REB-A]
I then went on to write, back on 23 January 2001:
I myself have yet to find a primary sourcebook of Federal law which fails to, along with the Constitution of the United States, include the Declaration of Independence and the Articles of Confederation. While it is true that the Declaration of Independence does not have the force of Law per se (as neither does the Preamble to the Constitution itself), it does- like the Preamble- show one the philosophical underpinning of the American Revolution that, in the end, made the present U.S. Constitution possible. "We hold these truths to be self-evident", the most famous and influential section of the Declaration so emphatically declares, "that all men [and in our own time, we would make it abundantly clear that "men" would here mean "humans", regardless of gender: REB-A] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these [implying others unstated, by the way: REB-A] are Life, Liberty and the Pursuit of Happiness.- That to secure these rights, Governments are instituted among Men [again, Women, too!: REB-A], deriving their just powers from the consent of the governed,- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government [(emphasis), obviously, mine: REB-A], laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Theoretically, then, "We the People" COULD simply authorize (with or without the consent of a Congress under the present Constitution), elect delegates to, and have these delegates represent us in, a Second Constitutional Convention- without any reference to the present Constitution, its Congress or its other institutions- including its Electoral College (after all, these all operate with "the consent of the governed"; we, the governed, do not- when push comes to shove- really need the assent of politicians and bureaucrats). And there is ample precedent for this in our Nation's own rich history: not only in the Declaration of Independence itself, which asserted that very "Right... to institute new Government" in complete disregard for the wishes of the then-still-young British Empire from which the then-United Colonies were, at the same time, declaring themselves separated but also in the immediate aftermath- and, indeed, as an indirect consequence- of that which that very Declaration had defended. The Continental Congress, the fundamental governmental body under the Articles of Confederation, resolved- on 21 February 1787- that "in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation".
Clearly, that Convention of 1787 so authorized went well beyond simply "revising the Articles" (including completely ignoring the Amending Procedure of those Articles which required all 13 States- that is, the State Governments- to concur in any Amendment of same by requiring only 9 States- and popular Conventions, not Governments, in those States- to bring the new Constitution into force). Indeed, what the Framers did in Philadelphia was- at the time- as "extraconstitutional" as any Second Constitutional Convention which could alter the process of electing our Nation's leader(s) would be; yet, the Continental Congress- instead of, on those very grounds, declaring the work of the Framers null and void- instead resolved, on 28 September 1787, that the new document crafted in Philadelphia "be transmitted to the several legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the [Constitutional] Convention". Furthermore, on 13 September 1788, once the new Constitution had been ratified according to its own provisions and not at all those of the Articles of Confederation, the Continental Congress of those Articles so completely ignored itself set the timetable for the election of the first President under that new Constitution. Again, there is ample precedent for a Congress- under enough political pressure from its constituents to do so- to authorize its own dissolution as the Continental Congress of 1787/88 had done!
Again, any Second Constitutional Convention would be- given the present political climate, along with that "Fear of Freedom" of which I spoke- a quite radical means...; in addition, one must ever be mindful of the words which immediately follow the section of the Declaration of Independence I quoted earlier: "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."... Nevertheless, it has to be admitted that this concept is not as inconceivable as it might appear at first glance and that it cannot be assumed that some future Congress under this Constitution- long after the author of this piece is no longer walking this mortal plane: perhaps, the 130th or 140th such Congress- will not ever perform, under its own initiative (where not forced by the People themselves), services similar to those once rendered the Nation back in 1787 and 1788 by the last Continental Congress under the Articles of Confederation! It is for this reason alone I include the concept of a Second Constitutional Convention divorced from the Amending Procedure outlined in Article V of the U.S. Constitution as an option (however unviable at present) in this Commentary...
So, now on to my current answer to Mr. Stremsky's question as to an Article V Amending Constitution:
As I thought when I wrote the above now more than eight years ago from which I have quoted in italics: not bloody likely! And this for pretty much the same reasons as I opined therein.
I simply think that conservatives and liberals (regardless of how conservative or how liberal) alike- albeit for, in the vast majority of cases, different reasons- are quite afraid to so "monkey" with the current U.S. Constitution. Attempting to amend the Constitution piecemeal- through the ordinary processes of Federal Politics- is one thing; holding an Amending Convention that could- if only in theory- very much end up reworking the document, however, would be quite another (if only because conservatives fear its potential domination by liberals, while liberals are- likewise- afraid it might come to be dominated by conservatives: alas! our time seemingly has no Washingtons and Madisons; Hamiltons and Franklins; Gouvernour Morrises and James Wilsons-- indeed, we Americans who think seriously about all this are ever mindful of Franklin's own admonition, the day after the Constitutional Convention of 1787 had adjourned sine die, that the Convention had created "a Republic- if you can keep it" and that we- that very "Prosperity" for whom the Federal Constitution they wrought "secure[d] the Blessings of Liberty"- could so very easily lose the Republic and, with that, our Liberty [however we might define same per our own respective and individual political ideologies])
And, as for that possible "Second Constitutional Convention" I wrote about, one coming to the fore outside of any Article V considerations (though only, as I pointed out, in very much the same way the current Constitution of the United States came to the fore outside of the Amending process provided by the Articles of Confederation it was replacing), the average American can only respond- or so it seems- with:
Yet none of this at all alters the fact that- as I myself opined during an interview I did back in December 2007 for the Rear Vision program(me) on Australian National Radio:
My feeling is, in the United States, if Americans really don't like something, they can change it. They'd have to roll up their sleeves and break a sweat and work hard to do it, but they could really change it- and there will be people who won't want to change it and there will be politics and there will be battles over it, etc.- but if Americans did not like the system the way it is, I'm sure it would have been changed a long time ago.
Therefore, even though I might well be the proverbial "voice crying in the wilderness", I will ever declaim- till I take my very last breath- that the power to make Government here in America what it should be (whatever that means!) is ever in the hands of "We the People of the United States". At the same time, if you and your neighbor might want to reform governance and politics- whether local, State or Federal- you have to accept the fact that your neighbor might want reform as badly as you do, but this doesn't at all mean your neighbor will accept your reforms (and, of course, vice versa!)
Thus, I also think that- underlying that which I referred to, on 23 January 2001, as an overarching "Fear of Freedom" (which, as I've said in this 'vox Populi' response, could fairly be construed as "Fear of losing Freedom") and, indeed, much the other side of the very same coin- there is also this notion of "If I don't get most- if not all- of what I would want, then why bother?"
And that is why I don't think we will ever see an Article V Amending Convention during the lifetimes of most- if not all- of those able to read this response at the time it was first posted...
if I'm wrong here about the attitudes of my fellow Americans-- well-- prove me wrong!