In this commentary, Lawrence Lessig from Harvard Law School and Nick Dranias of the Compact for America Educational Foundation refute what they see as fear-mongering about the Article V process for amending the Constitution at a state level.
Robert Greenstein of the Washington, D.C.-based Center on Budget and Policy Priorities recently attacked the Article V convention mode of proposing federal constitutional amendments in a number of media outlets. A critique of past balanced budget amendment proposals provided the platform for his assault. His argument is obsolete.
The amendment by convention movement is not characterized by a Left-Right divide. The drive for the proposal of a balanced budget amendment by convention is only one important part of a growing movement. In fact, proposals for term limits, ending log-rolling, and curtailing the influence of big money in elections are all under consideration in state capitols across the country. Like the ballot measure process utilized by citizens to effect reform in many states, the Article V convention process is simply a vehicle for reform that Congress itself can’t control — one that can spark fundamental changes in federal policy, and that can be tuned in advance to specific proposals for reform. It is a procedure, not a party platform. It is open to reformers from all sides.
Despite the fear-mongering, and especially if the states use a “compact” to agree in advance on how the process would work, a serious case can no longer be made that a convention would run wild. An Article V convention has no power to change the constitution on its own. Its only power, as the Constitution plainly states, is “for proposing Amendments.” And evidence now available because of the Internet to every American shows that it was the political bodies closest to the American people, state legislatures, that were meant to use the Article V convention process to propose the necessary constitutional changes.
We have long known, for example, that James Madison and Alexander Hamilton believed that state legislatures would have an equal power with Congress to propose amendments through an Article V convention. But today anyone can confirm that those sentiments reflected the public’s understanding of Article V as well.
Thomas Jefferson’s associate, Tench Coxe, for example, argued, “If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.” Coxe clearly thought that the states calling for a convention could specify their desired amendments in the application. As he further explained, “[t]hree fourths of the states concurring will ensure any amendments, after the adoption of nine or more.” “Nine” was the number of states necessary to apply for a convention call; Coxe’s plain meaning is that the application could include the proposed amendment.
Likewise, federalist George Nicholas confirmed the view that the convention’s mandate could be limited — “[the] Convention which shall be so called, will have their deliberations confined to a few points;—no local interests to divert their attention;—nothing but the necessary alterations.” And no less than George Washington affirmed that the “constitutional door is open for such amendments as shall be thought necessary by nine States”—again, a reference to the two-thirds threshold set by Article V for the states to trigger a call for an Article V convention.
Of course, apart from historical convention practices, we have no specific guidance on the procedures that would govern an Article V convention. But the approach of the American people has never been to throw up our hands and flee in panic when faced with a challenge. Instead, we tackle and solve problems. In that very spirit, Compact for America Educational Foundation has developed an agreement among the states to define and safeguard the amendment by convention process in advance. This approach has already been adopted by Georgia and Alaska in forming the “Compact for a Balanced Budget.” There is no reason an agreement among the states cannot be reached to settle in advance all questions about Article V convention procedures for other amendment efforts as well.
The framers gave us the amendment by convention procedure to provide a way around a Congress stalemated by its insiders. Americans from across a political spectrum are now working together to use that gift. The insiders will squeal. But that is precisely the point: they have failed to fix the fundamental problems that we now face. We must now use the tools the framers gave us to solve the problems that the insiders won’t.
Nick Dranias is Vice President of the Compact for America Educational Foundation. He previously served as General Counsel and Constitutional Policy Director for the Goldwater Institute. Lawrence Lessig is the Roy L. Furman Professor of Law at Harvard Law School, and Director of the Edmond J. Safra Center for Ethics at Harvard University.
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