It says Congress “shall” call a convention on the application of two thirds of the state legislatures, so I don’t believe that Congress has the option to decline to do so.
But that’s essentially what the situation was. The other 11 weren’t going to countenance these independent colonies–particularly Rhode Island which was surrounded on all sides (other than the seaward side) by states that had ratified. Further, the Articles of Confederation still applied to those states and made them part of the “United States” (a State generally agreed to have started in 1776 upon declaration of independence from Britain, not in 1789 upon ratification of the constitution.)
Nothing really happened between 1789-90 to test out what would’ve happened if some controversy had arisen, and eventually Rhode Island was threatened with having to pay crippling import tariffs on any goods it sent to the other states (which would’ve essentially been economic ruination) so capitulated, but I have little doubt for example that the President wouldn’t have taken action if either state had started entertaining say, relationship with Great Britain or some other power.
Yes, the whole point of the states’ initiative here is to be an alternative to Congressional initiative, or lack of same. If the requisite number of states get on board, some kind of convention will have to happen. The trick is going to be working out the process rules.
Among the various proposals to form such a Convention, has anyone supplied a description of the scope of such a Convention, the membership requirements for such a Convention and whether or not its findings will be automatically binding or will need approval from Congress, the states, both?
I gather the process itself is not sufficiently detailed (understandable, given its rarity) to be taken seriously at this time.
For fictional examples, I mention for the heck of it, the third book in Piers Anthony’s Bio of a Space Tyrant series more-or-less ends with:
-the protagonist winning the election to be president of North Jupiter
-somebody belatedly realizing that the protagonist was born on Callisto, and is thus constitutionally ineligible to be president of North Jupiter
-somebody belatedly mentioning “oh, by the way, there’s a constitutional convention going on”
-the convention declaring that once formed, they were the sole authority on the North Jupiter convention and able to amend or abolish it at will, with no need to recognize any authority other than itself
-the convention deciding to junk all existing constitutional structures and declare the protagonist to be the absolute sovereign of North Jupiter, hence the character finally becomes the “space tyrant” that the series title has been promising since the first book.
-the most senior admiral in the North Jupiter Navy reasons that since her oath was to uphold the North Jupiter constitution and the convention was formed under the rules of this convention, her duty is to obey the convention’s decisions and subsequently submit to the authority of the new Tyrant. That she is also the Tyrant’s ex-lover, back in the days when he was her commanding officer in the Navy, is just a happy coinki-dink.
Sure it can write its own rules, much like the U.S. Congress could pass a law saying “the Presidency is no longer in existence and the executive branch will be lead by the Speaker of the House, and since the Presidency no longer exists as an executive office he of course cannot veto this legislation.” That law would have no legal reality without something extra-legal to back it up, because in our current system the President ain’t gonna just step aside and I’d like someone to tell me how the Congress could make him do so.
But as crazy as the law I just proposed would be–it is no crazier than what you’re proposing, that a body called and constituted under our constitution would be able to effortlessly and with no trouble ignore the rules of that constitution. That’s no more realistic than my example in which Congress (a legislative body defined by the constitution) could just start ignoring the constitution and doing whatever the hell it wanted.
Your point also ignores these salient realities:
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The States not only call for the convention, they have to decide on who to send as delegates. Those delegates have no real power, if their State doesn’t support their decisions. It’s not like this delegation will wield more power than the 50 State Governments and the Federal government. So if it went off the rails like you suggest the actual governments of the States would have to support it, just like they did when the Constitutional Convention wrote a new Constitution in Philadelphia. They were not sent there to do that, and the States easily could’ve said “we didn’t send you there to write a new constitution, we reject this, and you all should be ashamed of yourselves.” It would’ve been political death for most of the convention members and we’d have a very different country today. So the constitutional convention has no real power to act without the states, so the idea that the state’s authority ends once they call for the convention is patently false.
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Article V does not allow for the convention to write a new constitution. It only provides for them creating constitutional amendments. Now, could an amendment be written such that it nullifies the entire constitution? Maybe. That’s actually not a question of settled law. The real answer is only “yes” if a large portion of the country and its organs of power agree with it.
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The Congress actually has to call the convention. I actually suspect this is a “fatal flaw” in the entire theory of Article V conventions. I think Congress would simply refuse to do this and no convention would ever happen. There would be no mechanism for the States to take action unilaterally. The States lack any real military power or the sort of sovereign power necessary to force a hand here. The Federal government holds all the cards, and very few people in any of the States, even the cantankerous red states, are going to fight and die over this issue. Without a nucleus of people willing to do that, this whole concept never gets off the ground. Same too for the convention ignoring the Constitution and saying we can pass a new one with only 26 state’s agreement. That’s a position that will require you be willing to die to uphold it, and in 2016 America people aren’t willing to do that over gay marriage or a balanced budget amendment or whatever nonsense they’d write into the new constitution.
Maybe, but not likely. There’s no evidence any of the states that didn’t actually break away from the Union would’ve supported this plan.
Also there are no established rules for even determining when “2/3rds of the States have called on Congress to call a Constitutional Convention.” In the history of the United States, more than 2/3rds of the States have already done this, but over a span of 200+ years.
Does it have to happen within one Congressional session? Does each State have to make its application with a specific note that it’s to pass x amendment, and thus when 2/3rds of the State have passed resolutions to discuss amendment x the Congress then has to call it? What are the rules? No one knows. What we know is that every State other than Hawaii has made an application to Congress to call for an Article V convention–one has never been called.
So Congress at the very least has rejected the “unlimited” convention theory, that regardless of subject matter and timing, once 2/3rds of the States have applied for a convention to be called, Congress must call a convention. If that were the case, one would have been called years ago.
Further, if you read about the history of State applications for a constitutional convention you’ll note a disturbing reality–Congress doesn’t even pay attention to these. They make no effort to tabulate them or track them. According to wiki at least 30 states have at “some time or another” over a time spanning decades, applied to Congress to call a convention to discuss a proposed balanced budget amendment. But it’s noted that the Congress takes such a bureaucratic indifference to these State applications that it’s likely we don’t even have a full record of every State’s application to Congress to call a convention, meaning even on a single issue application like the balanced budget amendment, it’s possible we’ve already had a point in which 2/3rds of the States have applied for a convention, and yet nothing has happened. A group advocating for a constitutional convention on the balanced budget only counts 27 states as having signed on link here. By other measures, some States have called for a convention for a balanced budget amendment and then rescinded those applications. The total number of all states to have ever submitted an application to Congress to call for a BBA is 34. But some of those states have rescinded those applications.
However nothing in Article V says States can rescind their applications. Under at least some theories, we already should’ve had an Article V convention to discuss the BBA.
I think these issues are insurmountable and represent the fact that the Constitution is fatally flawed as it pertains to Article V conventions, in such a way I do not actually think one can ever, mechanically, be called.
But this would be a clearly outrageous flouting of a Constitutional imperative. Surely, at a minimum, many of the Members so refusing would be ending their political careers in so doing.
The Supreme Court lacks independent military power too, but no Congress or President since Lincoln has flatly refused the imperatives of their decisions, right?
Conservatives + balanced budget amendment = destroy Social Security and Medicare. It isn’t like Congress is going to vote to increase tax revenue to the point of meeting current expenses- conservatives have obviously taken us in the opposite direction via the Reagan and Bush tax cuts. The BBA would be the coup de grace of this long-term strategy.
This would greatly please the oligarchic forces at work in the US today.
That is what some who support a BBA want, to be sure. What a Congress actually faced with that constraint would do, is somewhat of another question. I can imagine a bunch of new Representatives getting elected on a platform to stop it.
For what it’s worth:
From the Federal Register, describing the procedures followed by the National Archives and Records Administration, the agency apparently responsible for recording what the constitution actually says. They seem to feel a convention could be called independently of Congress, though whatever amendments the convention proposes will still have to be ratified by the states, so the conventional could not unilaterally decide some (or all) the states no longer exist, or something comparably radical in an effort to bypass the ratification process.
Article V is pretty clear that 2/3rds of the States can apply to Congress and that Congress is then supposed to call a convention, to which the States will then appoint delegates who will make decisions at the convention. Under the text of Article V, any amendments they agree on will then be sent to the States, when 3/4ths of them approve it, it becomes a valid amendment.
But there is no legitimacy to any convention not called by Congress, Article V even leaves the State-called for conventions in the hands of Congress. Congress has actually received tons of these applications in the last 200 years, but has never called a convention.
FWIW, it “seems” like Congress will only call a convention if 2/3rds of the States make an application on a specific issue, but we aren’t really even sure about that.
In practice what we’ve found is this issue is too technical/process based, has virtually no popular awareness and thus Congress has been able to write the rules to a degree (by not calling a convention yet, even though 49 of the 50 States have sent in applications, sometimes multiple.) The only time the Congress has meaningfully responded to the threat of an Article V convention was when it was an issue that had significant popular support–direct election of Senators, the 19th century populist movement was quite heated about that and it had broad national awareness. In that environment it’s politically more difficult for Congress to just ignore it–so they just side stepped that issue by passing the 17th Amendment and then sending it to the States for ratification, which defused the issue. Note that some advocates for a constitutional convention still count all the applications for a convention to produce an amendment providing for direct election of Senators as valid, and are working to hit 34 on that issue because then they could hold a convention and “do whatever they wanted.” But a number of States have rescinded their applications on that topic to try and head this off.
A Balanced Budget Amendment is by far the most likely “single topic” to hit 34, but even it is mostly a process issue. Outside of a small corner of the tea party most people don’t know or understand what the BBA means or care, and if we somehow had 34 States apply for a convention to discuss a BBA I still think Congress would find a way to head it off–particularly if it remained a niche issue. Direct election of Senators was not a niche issue and couldn’t be easily ignored. Note that in recent years states have actually rescinded their application for BBA (34 total have sent applications, but only 27 have sent them without rescinding them.) As the Reaganauts/Tea Party gang slowly dies off even the more conservative states are going to lose the steam required on this issue. Note that some previously red states like Virginia and Florida are already well into a transformation into blue states, and even Texas is being noted by many as a likely blue state in another 15-20 years–white Texans are dying off in record numbers and being replaced more and more by brown Texans; and many of the people who have moved to Texas to take advantage of its robust jobs market in the 2000s have come from more liberal states and didn’t shed their liberalism at the State line (this is similar to the effect in Virginia, a formerly deep red state, but when NoVa started attracting tons of workers from around the country they didn’t become conservative just because they had moved to Virginia, to the converse they made Virginia much more liberal–Virginia also has a large minority population.)
I think there is little chance we ever see an Article V convention–and I think that chance decreases with each year.
Applications formally supported by the legislatures of two-thirds of the states?
Back in 1992, the 27th Amendment was ratified after 200 years had passed since the first State ratified it. Let me quote Wiki about how Congress reacted:
So, yes, Congress very well might ignore the calls for a CC especially if the states voted for one over an extended period of time.
The text of Article V supports this, but who are the states applying to? Who is processing this application? Over what timeframe does this application have to occur and can a state withdraw its application, once given?
I get that the founders provided a suggestion as to how the constitution could be amended by the states without the need for approval by Congress, but there’s no mechanism described. I’d propose that someone write up such a procedure (i.e. “during the month of August in years ending in zero, state legislatures may send delegates to a designated convention meeting-place and, if two-thirds of states are so represented, may nominate a presiding officer and form a constitutional convention to draft and propose amendments by majority vote etc.”) Then, after three-fourths of the states have ratified this change, then conventions can meet regularly and propose any amendments they like. Have the meeting place be Independence Hall in Philadelphia or work on a bidding system like the Olympics or just random draw, whatever.
If a constitutional convention is called, I"m guessing it would be a coordinated effort by Republican states where they’d all hold votes during a short period of time. If they are also doing their homework, they’ll also agree on things like scope, delegates, etc. Governors meet annually, I believe, so if we were to find ourselves with 34 GOP governors, they just have to work out the details and then send up nearly identical bills for a vote in their legislatures.
I would like to see one held and propose to abolish the federal government. Not to actually do it, but just to demonstrate that Lee vs. Grant aside, the states are actually in control of the federal government, not vice versa. People have forgotten that the federal government was established voluntarily by the states, and can be ended by the states the same way it was established.
Excuse me? You might want to read Article V of the Constitution again.
“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…”
A Constitutional Convention called by 2/3 of the states as provided for by the Constitution is very much so subject to the 3/4 rule. If the states want to call a separate convention to replace the Constitution, that’s another matter, but whether or not they’re allowed to do that is another story.
On a related note…the original article said that the 27 states have called for a Constitutional Convention “to propose a balanced budget amendment”; however, I am unaware of any restrictions that can be placed on what amendments can be proposed at such a Convention. Here are some that I see having more than trivial support:
[ul]
[li]Requiring a balanced budget, although the definition of “balanced” is probably going to be left up to the Supreme Court unless it’s incredibly specific (e.g. “the amount that may be spent must be no more than the amount taken in by the federal government in the previous year”)[/li][li]Campaign finance restrictions (i.e. make Citizens United v. FEC moot)[/li][li]A mandate that marriage must be between one adult male and one adult female[/li][li]Alternatively, a mandate that marriage between any two consenting adults must be recognized in every state[/li][li]Removal of the guaranteed citizenship to anyone just for being born in the country[/li][li]Removal of the electoral college, and having the President and Vice-President elected by national popular vote[/li][li]Decriminalization of drug laws[/li][li]Changing the requirements to be President to be clear as to what “natural-born citizen” means, or, for that matter, getting rid of that restriction[/li][li]The repeal of the part of the Constitution that prevents amending the Constitution to get rid of “every state has the same number of Senators” - okay, I just threw that one in there to point out that, while the Constitution prohibits amending the Constitution to give a state fewer Senators than any other State without its consent, it says nothing about not being able to amend it to remove that particular prohibition[/li][/ul]
Almost forgot…how could I have a list of possible amendments without:
Clarifying the 22nd Amendment to include, “No person shall be eligible to hold the office of President or Vice-President of the United States who was not eligible to hold the office of President at the start of the term for which the person is to serve.”
That should end the “Does ‘elected’ mean ‘elected’ in the 22nd Amendment?”
Don’t forget “Life begins at conception”
They’ve never received an application from “two-thirds of the States.” Instead each State has sent its own applications in, individually. So far they’ve mostly constrained themselves to sending in applications to address specific amendments and congressional researchers and other legal scholars have tended to tally up votes based on the number of applications with “similar enough wording” on a like issue to count how many applications have come in.
There’s a big list of these on Wikipedia: here some of them have Roman Numerals as people have tended to group together applications on issues based on the “similar wording” standard. That is why there is a “Direct Election of U.S. Senators I and II” for example.
In total though, there have been a lot of these–as I said, 49 States have sent in applications, many more than once. But Congress has never formally established a process for determining when 2/3rds has been properly met. The most liberal possible interpretation has obviously been rejected or we’d already have had a convention called by Congress. It’s still unclear what sort of games Congress would play with the wording of the applications and other matters if there was consensus that an issue had hit the 2/3rds threshold.
It wasn’t until 2010 that Congress passed a resolution delineating a formal mechanism for keeping record of them–prior to that these applications were essentially haphazardly entered into the Congressional Record and scholars suspect at least some have been lost (since older congressional records sometimes have gaps, and older state legislative records which would have the record of the application being sent are even spottier.)
That’s where you lose the support of the small states, most of which are Republican. The electoral college gives them disproportionate power, and they are not going to give that up. The popular vote would render small states irrelevant, as candidates would concentrate their campaigns in large states to capture the most votes. That amendment will never fly.
Actually, it would do the exact opposite. Candidates would have to campaign in all states, including the small Republican-dominated states which are currently totally ignored. You can see on this map which states mattered in 2012, and it wasn’t Idaho or Montana or South Dakota.