By John F. Kowal
April 21, 2023
*This is the ninth article in our series The Promise of an Amendable Constitution in an Uncertain Era. You can view the rest of the pieces in the series here.*
Over the past five decades, conservative dreams of organizing the first-ever Article V convention have alarmed Americans of all political stripes, conjuring up nightmare scenarios of an assembly run amok. This long-running controversy over the desirability of an Article V convention centers on two different yet overlapping campaigns, both animated by the far right’s perennial goal of shrinking the federal government and curtailing its powers.
The older of the two campaigns, dating back to the 1970s, seeks a convention to propose a so-called Balanced Budget Amendment. When first proposed, the measure was exactly that: a simple requirement that the government balance its books, with waivers permitted for emergencies like a war or recession. Over the years, however, other far right fiscal priorities have been larded onto the proposal, including draconian limits on Congress’s power to raise taxes and raise the national debt. Critics and proponents agree that the proposal as it exists today would radically shrink the federal government through repeated cycles of tax and spending cuts.1John F. Kowal & Wilfred U. Codrington III, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union 239-40 (2021).
Another Article V convention proposal, branded as the Convention of States, has an even more radical aim. Launched in 2014, the campaign envisions a whole slate of amendments crafted to “limit the power and jurisdiction of the federal government.” A simulated Convention of States, organized as a demonstration project in 2016, produced amendments to abolish the income tax and narrow Congress’s regulatory power over interstate commerce, among other things.2Id.at 258. If adopted, these reactionary proposals would end the legal basis for most of modern governance, from economic regulation to social safety net programs like Social Security and Medicare.
Though progress has been slow, the right’s convention push shows no sign of abating. Just last year, four states submitted Convention of States applications to Congress, lifting the tally to 19 states. While the campaign for a balanced budget convention has been less energetic, failing to secure a new state petition since 2017, organizers claim to have 27 states in their column – seven short of the 34 needed to force a convention.
A coalition of progressive groups has mounted a strong defense, lobbying to block new state applications to Congress while persuading state legislatures to withdraw those previously issued. In their advocacy, convention opponents make two main arguments. First, on the substance, they argue that the proposed amendments would make for bad, even disastrous, policy. Second, on procedural grounds, they warn that invoking the Article V convention provision would risk a “runaway convention” that could result in far-ranging changes to our Constitution. As Common Cause, a leader in this fight, argues, “an Article V convention is a dangerous and uncontrollable process that would put Americans’ constitutional rights up for grabs.”
These arguments are nothing if not familiar. Throughout our history, whenever an Article V convention has loomed as an actual possibility, the fear of a convention gone wild, engaged in a wholesale rewriting of our fundamental law, inevitably begins to rise. Time and again, the specter of a runaway convention has acted as a powerful braking force, pulling the country back from the brink. It’s the main reason we have never had an Article V convention in our history.
In my 2021 book, The People’s Constitution, a history of the Article V amending process co-authored with Wilfred Codrington, we side with those who worry about current efforts to call a convention.3Id. at 261. But a growing number of progressive scholars and reformers are asking whether it’s wise to take the convention option off the table completely. At the Brennan Center’s symposium exploring the prospects for constitutional amendments in our time, David Pozen asked from a “convention curious” perspective whether a convention might offer “a chance to rethink our institutions and make them more democratic.” He urged progressive reformers to engage in some “thinking about what a good constitutional convention would look like.” John Vile, an on-the-record supporter of the convention path, suggested that there was no reason to fear an Article V convention, arguing that such a proceeding could be safely limited in scope.
But what is a convention skeptic to think? Has a half-century of far right agitating for an Article V convention led progressives to a reflexive stance of excessive caution?
One reason to be cautiously open to the Article V convention route is its prodding effect on an unresponsive Congress. The best example of this phenomenon can be found in the saga of the Seventeenth Amendment. After two decades of obstruction, it took the credible threat of an Article V convention to finally break senators’ resistance to an amendment to change the method by which they were selected. A surge of applications for a balanced budget convention in the early 1980s similarly nudged Congress to hold votes on the amendment, though the measure ultimately failed to win the support needed to advance. It is worth noting that the state legislators who first pushed for the balanced budget convention made clear that their interests lay less in assembling a convention than in jolting recalcitrant lawmakers into action. For them, the convention threat was merely “a ‘club’ to get Congress’s attention.”
That said, reform-minded Americans would need acceptable answers to three crucial questions before they could learn to stop worrying and love the Article V convention.
Who determines a convention’s scope, rules, and procedures? At the Philadelphia Convention, James Madison expressed concerns about an amendment-proposing convention that seem prescient today. Madison worried about the “vagueness” of relying on conventions to craft amendments. “How was a convention to be formed?” he asked. “By what rule [would it] decide?”42 The Records of the Federal Convention of 1787, at 558 (Max Ferrand, ed., Yale Univ. Press, 1911). Conservatives assume that many of these questions can be left to the states or to the delegates themselves, but that provides scant assurance to those wary of a convention without proper constraints. The best way to ensure that a convention’s rules, procedure, and scope are carefully defined is for Congress to pass a law to put a comprehensive set of procedures in place well before a convention is ever assembled. Senators Sam Ervin and Orrin Hatch both championed bills that provide a helpful place to start. And John Vile walks through the basic elements to be included in any such legislation in his comprehensive 2016 treatise on the Article V amendment mechanism.5John R. Vile, Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution 188-93 (2016).
Would it be a convention of states or a convention of the people? Conservative activists like to assume that the question of representation at an Article V convention should be governed by the “time-honored, ‘one state, one vote’ rule” used in 1787.6Tom A. Coburn, Smashing the DC Monopoly: Using Article V to Restore Freedom and Stop Runaway Government 64 (2017). But why should that be? Large states and small states did have an equal vote at the Philadelphia Convention despite their significant variation in population, but this arrangement merely reflected the inequitable allocation of power under the Articles of Confederation, which the Framers rightly discarded. In giving Congress the power to craft amendments in Article V, they made sure large states would have more of a say than small states. Why should the allocation of votes at a convention be any different? Delegates to a convention should be divided among the states according to population or, consistent with another feature in our constitutional scheme, apportioned according to a state’s electoral votes. Any insistence on adhering to the unjust “one state, one vote” rule would be reason enough to reject the convention approach.
What is the role of gerrymandered state legislatures? While state legislatures have the initiating role in submitting applications under the procedure of Article V, it’s the responsibility of Congress to call a convention. It follows that Congress also has the power to organize the convention and set its parameters. And yet, the right’s Article V convention warriors suggest that Congress has no role after calling a convention. In their telling, state legislatures would exercise “complete control.”7Id. at 61. But there’s nothing in Article V to support this view. Today’s conservative “constitutionalists” like to pretend that the Framers had great reverence for state legislatures. And yet, when it came to ordaining and establishing their new Constitution, the Framers made a point of bypassing the state legislatures entirely, giving the ratification power to the people assembled in elected conventions. And in Article V itself, they provided an alternative means of ratifying amendments that similarly bypasses state lawmakers in favor of elected conventions. When you factor in political gerrymandering, which unfairly skews the composition state legislatures in favor of one party or the other, it’s clear we should follow the Framers’ lead. State legislatures should have no role in an Article V convention beyond the submission of applications. Since Congress has the responsibility for calling the convention, Congress should set its rules and procedures. And once a convention proposes amendments, Congress would be wise to specify state conventions as the method of ratification – a provision used only once in the speedy ratification of the Twenty-First Amendment, which repealed Prohibition.
John F. Kowal is Vice President of Program Initiatives at the Brennan Center for Justice. He is the co-author, with Wilfred U. Codrington III, of The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union.
Suggested Citation: John F. Kowal, A Skeptic Asks: Is It Possible to Stop Worrying and Love the Article V Convention?, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).
- 1John F. Kowal & Wilfred U. Codrington III, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union 239-40 (2021).
- 2Id.at 258.
- 3Id. at 261.
- 42 The Records of the Federal Convention of 1787, at 558 (Max Ferrand, ed., Yale Univ. Press, 1911).
- 5John R. Vile, Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution 188-93 (2016).
- 6Tom A. Coburn, Smashing the DC Monopoly: Using Article V to Restore Freedom and Stop Runaway Government 64 (2017).
- 7Id. at 61.