by Rob Natelson, Electric City Weblog

Many (including this writer) think the federal government has slipped its constitutional leash and that the people may have to re-stabilize matters with one or more constitutional amendments. How would this be done?

Article V of the Constitution provides for four methods of amendment:

1. Two-thirds of both houses of Congress propose an amendment to the state legislatures. If three-quarters of the state legislatures ratify, the amendment is effective. Of the 27 amendments approved so far, 26 have been ratified by this method.

2. Two-thirds of both houses of Congress propose an amendment to state ratifying conventions. If three-quarters of the conventions ratify, the amendment is effective. The Twenty-First Amendment (repealing Prohibition) was ratified by this method.

3. Two-thirds of the state legislatures apply to Congress for a new constitutional convention to propose amendments. The Constitution says Congress “shall call” the convention – in other words, Congress has no choice. The convention proposes amendments. Congress must choose whether to send them to the state legislatures or to state conventions for ratification.

If Congress opts for the state legislatures, the amendments become effective when ratified by three-quarters of them.  Over the years there have been scattered state applications to Congress for a constitutional convention, but never two-thirds of the states on the same topic at the same time.

4. Two-thirds of the state legislatures apply to Congress for a new constitutional convention to propose amendments. Congress must call a convention. The convention proposes amendments, and Congress opts for a state-convention method of ratification. The amendments become effective when ratified by three-quarters of the state conventions.

The Founders (accurately) expected the first and second method to be used more often than the third or fourth, since in dealing regularly with federal issues Congress would be well positioned to know when amendment was needed. But sometimes Congress itself would be seen as the problem, so the Founders included Methods #3 and #4 as bypass options.

There is a long-standing debate over whether the state legislatures can limit the scope of a convention to only certain proposals, or whether the convention can propose anything it wants to. Some have argued that Methods #3 and #4 are dangerous because a “runaway” convention might disregard its call and propose anything that suited its fancy.  (The 1787 convention is cited as an example.)  But even if the convention were not legally bound by its call, the danger of a “runaway” is more imaginary than real.

First, any convention would be under enormous political pressure to honor the terms of its call, especially knowing that any proposal it submitted would have to go back to the very states who initiated the call. More importantly, anything the convention proposed would have to be approved by even more states than applied for the convention at the outset.

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.

Rob Natelson

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