The sitting President will not allow the current constitution to be changed without an amendment passing 3/4ths of the states, as required by the U.S. Constitution–the document that grants him power and which is sworn to uphold. Such a President would be in a situation no different from Buchanan (who punted) or Lincoln (who went to war)–namely, states asserting a new government, outside the accepted bounds of our laws and constitution. His obligation in that case was clear, and his actions left no doubt as to the consequence if such a thing were to occur again.
Now yes, if enough people decide our current constitution is no more, then it wouldn’t be. It wouldn’t necessarily have to follow the strict 3/4ths rule. But as a matter of reality tell me where you get 26 State delegations to sign on for disbanding the current constitution? I think a lot of you are dramatically overestimating the level of insanity in the country. I think you could find some state delegations that might vote this way, but I think 26 is a stretch. Further, if it’s 26 states representing 30% of the country and 20% of the GDP, they likely will lack the power to do what you describe.
This is also positing a convention in which the delegates ignore the clear rule that anything amending or changing the current constitution requires approval of 2/3rds of the delegations (not a simple majority–you’ve already said you don’t think the 3/4ths ratification rule would survive but it’s highly questionable how a convention called under Article V could ignore the 2/3rds rule too.) Most of the largest richest states would never vote to break away from the country. California, New York, Florida–even Texas. Back when Rick Perry was first considering running in 2012 and made some crazy comments about secession, it was noted that anywhere from 1% of Texans really support secession to “up to 25%” really support it (the polling on this topic is not well formed.) But in any case, the proposed concept that a constitutional convention will attempt to impose a constitution on people in violation of the Article V rules creates a scenario in which the states involved in that convention would have to essentially be willing to secede from the union–and likely most of the States themselves would not support the delegation in this and the convention would just end.
The reality is the only time an Article V convention has ever been close has always been over single issues (for example direct election of U.S. Senators), and thus if it ever happened it likely would only pass a single amendment and then convene. The constitution is so vague on how the convention is to be run there’s even a chance that would prove fatal to its basic functioning and it could never properly be seated.
Still, the other viewpoint has a strong case here, for, the Constitution that was submitted to the states for approval asserted that it would become valid once nine states voted for it, not all thirteen.
It was a dangerous and arrogant precedent. Fortunately, all thirteen states did ratify it, so the crisis was mooted. But imagine the horror if four states had said “No way.” Worse, if they had been four of the more important, populous, and powerful states.
We were spared a Civil War at the very inception of the Constitution. It would be sinful folly to invite one today by arrogating a “simple majority ratifies the new amendments” clause.
I also agree with Martin Hyde: The President wouldn’t accept this, and I don’t think the military would go against him over it.
I don’t think the calling, nor the convening, of a CC negates the current Constitution. If they tried to implement anything without the 3/4 of the states’ approval being the threshold of passage, the Supreme Court would declare it unconstitutional. Until they pass a new one, the old one stands, and they’re required by the Constitution to have 3/4 of the states approve of any changes.
Now they could re-write the Constitution from the ground up, with new requirements for amending it going forward, but until it passes the requirement for change under the rules of the current Constitution, it’s only worth the paper it’s written on.
If a group of people declares the Constitution to be thrown out the window, and We The People are fine with that, they’ve effectively overthrown the U.S. government.
Constitutional law scholars, correct me if I’m wrong.
Yes so–they were part of the United States and subject to the constitution. Just because they didn’t send electors does not change this fact. No different than Virginia was part of the United States in the election of 1864, one in which it sent no electors.
This isn’t something there is any answer on–but arguably the Supreme Court would have no valid say on the dealings of a constitutional convention. Plus in a world where people are positing completely ignoring the constitution it’s unlikely that the same people who are arguing they can ratify a new constitution with the support of only 26 states will care what the supreme court says whose power of judicial review is not unambiguously inferred from Article III, and was mostly just tacitly accepted because of tradition and a desire by early Federalists to utilize John Marshall as an effective veto against Democrat-Republican legislation. It continued to be accepting later on because people had essentially recognized it wasn’t a bad idea.
You’re missing the point. Three quarters of the states are required to call for a Constitutional Convention - and that’s the last time their authority is needed. Once the convention is legally called, it writes its own rules.
If the southern states had followed this procedure in 1860, they might have been successful. If twenty-five states had called for a Constitutional Convention that summer, they might have been able to argue for breaking the country into two halves, each with its own government and allowing each state to choose for itself.
I’m all in favor, provided it’s a fairly orderly process designed to make clearer some of the existing disputes that the courts have not really settled in a satisfying manner:
What are the limits of the commerce clause?
The 10th amendment needs better definition
Executive power needs to be more strictly defined.
Congress policing itself has never worked very well.
The judiciary’s power of review needs to be defined better. I’d actually like to see it strengthened.
Since judicial appointments have become so politicized, we might need to figure out a better way of doing it.
First of all, it requires 2/3 of the states to call a CC. So even if a few states were wacko enough to attempt it (which I vehemently disagree) you couldn’t get enough to have an official convention. Second, the US Constitution explicitly says that the convention still needs to pass 3/4 ratification. According to this Harvard article (PDF):
Problem with that is that nobody has determined whether you can even set forth such a process so a limited-scope call for Convention is binding, or if once convened it becomes a sovereign body that can then set its own agenda and proceed to write an entirely new one, as was the case in the one and only precedent.
As mentioned before, part of the reason the US are not into our “(X)th Republic” as it is, is that the constitution restrains itself to the Big Picture and does not try to itself contain the UCC, Rules of Civil Procedure, etc. A lot of the calls for Amendments or Conventions tend to come from the angle that someone thinks some specific policy matter should be permanently enshrined or forbidden at the national level, with Congress, State Legislatures and the Courts helpless to do anything else about it in the future. Better to deal with those individually by the regular amendment process.
Obviously you can’t, but if they actually want to get amendments passed that get 3/4ths of the states’ support, they need to be orderly and intelligent. If it’s just a cacophonous mess, with anti-abortion amendments and marriage amendments, then it’ll be treated like the insane spectacle it is.
But the example of our last constitutional convention shows that if you send intelligent, restrained people to do the job, good things can come of it. We obviously don’t need a new Constitution, but a few amendments that Congress will never pass(in part because it might limit their power) would be helpful.
This is not a call for a constitutional convention.
The purpose of an Article V convention is to amend the current constitution not replace with a new one.
There are two ways to amend the constitution.
The US Congress can propose amendments.
State legislatures can convene to propose amendments.
In both cases 3/4 of the states must ratify amendments.
Notice how I emphasized the word “convene” in method two. I did that in order to emphasize the fact that this is a “convention” in the same sense that tradesmen have conventions.
Again, an Article V Convention of the states to propose amendments to the Constitution is not the same as a Constitutional Convention.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, 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, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Anything proposed by a convention must be ratified by three fourths of the states. There’s no way for the convention itself to negate this requirement, as such a change would have to be ratified by three fourths of the states.
The 2/3s of States can only ask that a convention be called, pretty clear in the text of the Constitution only Congress can officially call for such a convention.
I stand corrected on my statements that all the State were required to agree to the new Constitution. They did, making the point moot in that case.
I’m not exactly clear how it should come about that 26 States demand a change yet still send congresspersons who vote the status quo, that just seems weird.