Should We Fear Article V? - Pacific Standard

Should We Fear Article V?

We're closer to a constitutional convention, where any new amendment could be put before a simple majority vote, than you might realize.
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The United States Capitol building in Washington, D.C.

The United States Capitol building in Washington, D.C.

Somewhere in a political science intro class, you may have heard your professor talk about the fantasy/nightmare scenario of the Article V convention of the states, in which pretty much any ideas for constitutional amendment could be thrown on the table. Well, such a convention is closer than you might realize to actually happening. This would neither be everything that its proponents want nor everything its detractors fear. But what would be the result if such a convention took place?

Article V of the US Constitution reads as follows:

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 the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

What this means is that if two-thirds of the states' legislatures (34 of them) call for it, they could bring together a convention to propose amendments on any subject they want. Twenty-seven legislatures have already called for such a convention, and, as Charles Pierce notes, seven state legislatures under Republican rule have yet to take up the question. So this longstanding conservative dream could actually come true.

The Constitution is notably silent on the rules for such a convention. In theory, anything passed there could be done by simple majority. This is starkly different from the normal constitutional amendment process, which requires two-thirds of both chambers of Congress before it goes to the states for ratification.

Republicans have agitated for decades for a host of constitutional amendments that haven't come close to the needed two-thirds passage vote. These include a ban on abortion or a prohibition of flag burning. Maybe today someone would propose a constitutional amendment requiring athletes to stand during the national anthem.

It's possible to overhype this scenario, though. Just because these amendments are proposed doesn't mean they get added to the Constitution. Each still has to pass three-quarters of the state legislatures, which is no mean feat. Republicans currently control 32 state legislatures and have partial control of three—actually passing an abortion ban in 34 of those is a longshot at best. And chances are the GOP will lose some state legislatures next year given that the president's party tends to lose state legislative seats in mid-term elections.

An honor guard stands next to the original copies of the Declaration of Independence, the Constitution, and the Bill of Rights on July 4th, 2001, at the National Archives in Washington, D.C.

An honor guard stands next to the original copies of the Declaration of Independence, the Constitution, and the Bill of Rights on July 4th, 2001, at the National Archives in Washington, D.C.

But not every suggested amendment would fall strictly along party lines. For decades, members of Congress have endorsed a balanced budget amendment. A 2011 House of Representative vote on such an amendment fell short of the two-thirds needed for passage but still achieved a majority—236 Republicans and 25 Democrats voted in support of it. This proposed amendment has long been a cheap way for legislators to signal that they take balancing the budget seriously without having to do any of the serious work of balancing the budget, which involves unpopular things like cutting spending and raising taxes. Should an Article V convention pass such a proposal, it could possibly achieve the three-quarters of state houses, as state legislators, including some Democrats, would see it as a way to signal that they're tired of Congress running deficits even while state budgets need to be balanced. This could have catastrophic effects on the economy of the United States—Pierce isn't wrong to call it the Worst Idea in American Politics—but it would be enshrined in the Constitution.

Another one that could potentially be ratified by the states would be a congressional term limits amendment. This would not only be a pretty popular vote for state legislators, but it would also be a self-interested one; more turnover in Congress means more opportunities for state legislators to run for open congressional seats. Term limits have both Democratic and Republican support. The consequences would likely be negative, producing a Congress that has even less expertise and is more dependent upon parties and lobbyists for guidance. But again, it would be part of the Constitution.

The term limits amendment, in particular, is a good example of the type of amendment that isn't likely to pass Congress—whose members aren't eager to limit their own careers—but might easily pass an Article V convention. In general, it's hard to know which is the more challenging threshold, two-thirds of Congress or three-quarters of state legislatures. Only six amendments have passed Congress but failed to be ratified by the states, but of course anything that can get through a congressional supermajority has already amassed a very high level of support. An Article V convention removes one of the major chokepoints to the amendment process. It doesn't mean that the Constitution changes radically overnight. But it does mean that state legislators will suddenly have a lot of amendments to consider, and some of them may well end up in the nation's charter.