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InsiderOnline Blog: February 2011

Is an Article V Convention the Answer?

The number of federal aid-to-state programs now stands at an all-time high: 1,122, according to an analysis released this week by Chris Edwards of the Cato Institute. Many of these programs are a Faustian bargain for the states; in order to get the aid, the states have to spend their money, too. This set-up is one of the major reasons that states now find themselves in such dire fiscal straights, and it’s an open question whether the United States Congress can ever step back from its mandating, bailout-giving posture toward the states.

Could a constitutional convention proposed by the states, as provided for under Article V of the United States Constitution, provide a way of reining in federal overreach? The Heritage Foundation’s Matthew Spalding says this option should not be considered lightly:

There have been hundreds of applications for an amending convention over the years from virtually every state. Because no amending convention has ever occurred, an important question is whether such a convention can be limited in scope, either to a particular proposal or within a particular subject. While most calls for amending conventions in the nineteenth century were general, the modern trend is to call (and thus count applications) for conventions limited to considering a single, specific amendment. Some scholars maintain that such attempts violate the very mechanism created by Article V: the text says that upon application of the states Congress “shall call a Convention for proposing Amendments,” not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention). Indeed, it is not at all clear as a matter of constitutional construction (and doubtful in principle) that the power of two-thirds of the states to issue applications for a convention restricts, supersedes, or overrides the power of all the states assembled in that convention to propose amendments to the Constitution. Other questions include the many practical aspects of how an amending convention would operate and whether any aspects of such a convention (including going beyond its instructions) would be subject to judicial review. …

Serious scholars will undoubtedly continue to debate the historical record and speculate about the possibility of an amendments convention under Article V. Nevertheless, the lack of precedent, extensive unknowns, and considerable risks of an Article V amendments convention should bring sober pause to advocates of legitimate constitutional reform contemplating this avenue.

While a valid method created and available under the Constitution, “a Convention for proposing Amendments” has never been viewed as just another tool for reform but has become ever more so an ultimate option to be deployed only in extremis for the sake of maintaining the Constitution. Hence, the only time [James] Madison pointed to an amendments convention was during the Nullification Crisis of 1832 as a last-ditch effort to prevent the wholly unacceptable and unconstitutional alternative of nullification and secession that then threatened the continued existence of the United States.

For more, see “Article V: Congress, Conventions, and Constitutional Amendments,” The Heritage Foundation, February 10, 2011.

Posted on 02/11/11 01:16 PM by Alex Adrianson

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