Convention of the States or a Constitutional Convention?

There’s an odd meme floating around the internets that an Article V “Convention of the States” is not the same thing as a constitutional convention. The key to this thought is in the Constitution’s Article V language that–on a textual reading–limits such a convention to proposing amendments to the Constitution.

The Congress … 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 …

Note that it says “proposing amendments” which can become “part of this Constitution” (emphasis added). Obviously, then, they can’t create a new Constitution.

I most recently ran across this suggestion on Facebook, where I mocked the ignoramus Bristol Palin’s call for a Convention of the States to “save America!”

My mom talked about how it’s important to support the Convention of States, because it will restrict the size of the federal government.

Of course Bristol’s mom says a lot of stupid things. So as I inconsiderately noted, won’t Bristol be thrilled when liberals can’t be excluded from this constitutional convention. To which one of the the Palins’ undoubted intellectual equals responded

James, you really don’t understand the process. People don’t just show up. And it is NOT a Constitutional Convention. Please study and educate yourself.

Well, true, people don’t just show up. But that’s not the same as only conservatives showing up. And, well, I have studied this a bit. Quite a bit. And here’s something I know that they seem not to know–the original constitutional convention was only authorized to suggest revisions (amendments) to the Articles of Confederation, but our glorious Framers didn’t let themselves be bound by such pedantic textual considerations.

It has been argued that the authorization of the convention by the Congress, which textually limited it to “the sole and express purpose of revising the Articles of Confederation” did not matter because it was the states who sent (or did not send) delegates, and who mostly did not limit their authorization. But this ignores two factors. First, the initial attempt at such a convention, the Annapolis Convention held the year prior, had only 5 states in attendance–the succeeding approval of such an effort by the Congress gave the effort legitimacy, leading to all but 1 state sending representatives to Philadelphia. Second, it ignores Article 13 of the Articles of Confederation, which explicitly requires approval of any alternations by the Congress before the states can have their say.

nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

Congress, then, was signalling that it would only accept revisions, not a wholesale replacement. If it had held its ground, the states would never have had a chance to vote on the Constitution.

But the Congress did not stand by that restricted purpose, and the same could happen today. Assume the states calling for a convention of the states and Congress in responding by calling such a convention, all emphasized a limited purpose to the convention, reminding the delegates that they could only propose amendments to be added to this–the current–Constitution. Nothing then binds them later from changing their mind; Congress deciding they like a suggested wholesale replacement, and the states accepting it.

Or perhaps it’s not a wholesale replacement, but still a fundamental alteration. E.g., proposed Amendment 28 repeals Articles 1 & 2, replacing them with a unicameral parliament selected via nation-wide proportional vote with a 5% threshold. Again, that might exceed the purposes specified by the states and by Congress, but Congress and the states would still have the choice of whether to accept the proposed amendment. It would be, after all, only a proposal, and you can’t really punish someone for a mere proposal. (Well, you can, but only if you’re a particularly bad boss.)

So there are two critical dynamics that anyone calling for an Article V Convention of the States needs to keep in mind. 1) You cannot be sure of being able to constrain its scope and purpose, no matter how explicitly you write the authorizing documents; and 2) Your political enemies, those people who are hell-bent on destroying this country will be represented. Yes, Ms. Palin, people who want to expand the size of the federal government will be there. A Convention of The States We Like won’t have any legitimacy. And, yes, liberals, the Palins–that is, folks who think like them–will also be there.

Think twice before you jump off the roof holding a bedsheet, ok?

About James Hanley

James Hanley is former Associate Professor of Political Science at Adrian College and currently an independent scholar.
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3 Responses to Convention of the States or a Constitutional Convention?

  1. trumwill says:

    The prospect of a new constitutional convention scares me a great deal. Precisely because I think of all of the people in attendance that I would strongly disagree with. Considering that we have one of the most friction-laden forms of government in the world, it seems particularly odd for someone who wants the federal government to do less to call for a redesign.

  2. James Hanley says:

    I envision a convention composed of equal numbers of commenters from Redstate and Daily Kos, and I get a sinking feeling inside.

  3. lancifer666 says:

    Any statement that begins with the words “My Mom” has a long up hill battle to get back to the ground state of credibility.

    And the depth of the potential well is near infinite when the “Mom” in question is Caribou Barbi.

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