As we careen from one partisan confrontation to another, it might surprise many people to learn that some people actually think that this is a good time to open up our fundamental law. But yes, several groups on both the Left and the Right are busily working to persuade states to pass resolutions asking Congress to call a convention under Article V of the Constitution.
A liberal group, Wolf PAC, has persuaded a handful of blue states to request an Article V convention with the hope that it will reform campaign finance law.
Much of the opposition to calling an Article V convention results from the danger that such a convention could veer in dangerous and unpredictable directions, especially in this toxic political atmosphere. Recognizing these concerns about a runaway Article V convention, COSP and ALEC have urged states to pass laws purporting to direct delegates how to vote and providing for those delegates’ recall should the delegates disobey the legislature’s instructions constraining how their delegates could vote. These bills are a sham that do nothing to reduce the dangers of calling an Article V convention.
Article V of the U.S. Constitution provides two methods of adopting amendments. First, Congress may, by a two-thirds majority in both houses, propose amendments to the states. Second, if two-thirds of the states ask Congress to call a constitutional convention, Congress must do so. Every amendment to date has been proposed and ratified through the first method. These groups are seeking to persuade state legislatures to take the country into the uncharted territory of an Article V convention.
Nothing in Article V, or anywhere else in the Constitution, authorizes Congress, state legislatures, or anyone else to limit the agenda of an Article V convention. And even if they did, the Supreme Court has made clear that the process of amending the Constitution is a “political question” into which the courts would not intervene. Once the delegates convene, they are answerable only to themselves. The product that emerges from an Article V convention could be radically different from what those asking it to be called may have envisioned, just as the Philadelphia convention of 1787 departed sharply from its mandate to propose amendments to the Articles of Confederation.
COSP’s proposed delegate-constraining laws will not work for several reasons. First, nothing in the Constitution gives state legislatures the power to control their states’ delegates any more than state legislatures can control their states’ Members of Congress. Once selected, delegates to an Article V convention become federal officials with authority derived from Article V, not from the states. In Bush v. Palm Beach County Canvassing Bd., the U.S. Supreme Court held that, when state officials derive their powers from the U.S. Constitution, federal law can constrain state officials’ actions.
Second, even if such state laws were valid and binding, no one is or can be empowered to enforce them. Article V limits Congress’s role to calling a convention once a sufficient number of states have made valid requests; it would have no authority to oust delegates even if it wanted to do so. As noted, the Supreme Court has made clear that such matters as political questions that federal courts may not decide. State courts have no authority to intervene in a federal constitutional convention.
Finally, even if such laws were valid and enforceable, the convention would almost certainly finish its work before the laws could be invoked. Particularly if delegates are aware of such state laws, they could readily arrange for all matters before the convention to be decided by a single up-or-down vote at the end of its proceedings. Negotiators on complex matters routinely operate on the basis that nothing is agreed until everything is agreed. This leads to a single large package that is approved as a block at the very end. At that point, the convention would disband, and any recall of delegates would be meaningless.
Calling an Article V convention is reckless, especially at this divisive moment in our nation’s political history. Nothing these groups propose does anything even to mitigate the risks that a convention would bring. State legislatures should not delude themselves that the dangers of an Article V convention can somehow be contained.
David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.