Attacking Article V is Attacking the Constitution
Over West Virginia’s last four legislative sessions, the Article V convention has been a hot topic. Several convention petitions were introduced during this period. The 2019 Legislative session was no different, with varying petitions such as campaign finance reform or term limits filed. The argument against this process is that the convention will simply “rewrite our Constitution, taking away our rights.” If you’ve only read about Article V in op-eds from “the experts,” then runaway fears aren’t surprising. Common Cause has attacked the convention for years, recently releasing an opposition letter with groups working here in West Virginia signing on, such as the ACLU and Center on Budget & Policy Priorities. Those propagating it are actually attacking the Constitution, stifling progress they would otherwise be elated to see.
Article V of the U.S. Constitution clearly lays out two modes for proposing amendments: ⅔ of both chambers of Congress can propose an amendment, or ⅔ of the states can call a convention to propose an amendment. Regardless of who proposes the amendment, it remains a proposal until ¾ of the states ratify it. Because Congress has grown so unresponsive to the will of the people, the push for a convention has become increasingly popular.
How do we know these groups have it wrong? Let’s start with the sources of these conspiracy theories about the convention process. None of these op-eds being peddled as concrete truth are being written by experts on the Constitution, certainly not Article V. When you look at what actual Article V experts have written, 100% of the peer reviewed research agrees the convention can be limited to one or more specific issue. This includes an opinion from the American Bar Association, multiple reports from the Congressional Research Service, as well as reports from the Department of Justice (DOJ) done under both Democratic and Republican control.
A 1987 DOJ report to the Attorney General outlined four major Constitutional enforcements to limit the convention within its mandate. The delegates themselves will be sworn under oath & directed by the state, & can be recalled, replaced, or even prosecuted for acting outside of their mandate. Congress must call the convention on a specific issue. Congress is also tasked with sending proposals to the states for ratification, so it can withhold unrelated proposals. This all exists within our legal system, so any action perceived improper or outside of the mandate can be immediately challenged with priority status in the courts. Most importantly, the states have the monopoly on ratification, & can veto unrelated proposals.
These four limitations work in tandem as a set of checks & balances on each other. In order for a runaway convention to happen, all four of these protections would have to fail. In the event of the collapse & failure of the convention delegates, the state governments, the Congress, the legal system, & the Constitution they are sworn to uphold, we would have a much greater problem than an unpopular amendment.
Let’s paint a picture of how a runaway convention would look, so we can understand its true likelihood. The first barrier is securing consensus on a subject in 34 states. History shows that Congress will act before the critical mass has been reached. The next step would require a total breakdown of the delegate selection process, with delegates not sworn under oaths & given no direction. Then, the Congress would have to fail to perform even their small role of sending only proposals within the purview of the mandate to the states, followed by a complete breakdown of the U.S. court system. Lastly, & most absurd, the states would have to ratify an amendment that 34 of them didn’t even convene to discuss. Let’s not forget how nearly impossible the 38 state threshold is to achieve even on the most popular of issues. How likely does this scenario sound to you?
The fear of the runaway convention is exaggerated and misplaced, stifling progress on major issues. We must use all the tools of democracy available. Let’s end these attacks on the Constitution and start judging Article V convention calls based on the merits of the issues for which they’re called, not on the mechanism itself.
