Article V Conventions: Pros and Cons

Article V Conventions: Pros and Cons; Randy Barnett; The Volokh Conspiracy

The American Spectator magazine has a balanced article, by Philip Klein entitled, “Is It Time for a Convention?,” about the pros and cons of calls for an Article V amendments convention. It includes this:

AT THE TIME of the founding, the ability of the states to call a convention to propose amendments was seen as a way to prevent the federal government from becoming too expansive. In essay No. 85 of the Federalist Papers, Alexander Hamilton cited the states’ convention option in his response to critics who feared that Congress would never allow any amendments limiting its power. The Constitution orders that “The Congress shall call a convention” if two-thirds of states demand one, he pointed out, and thus whether to call a convention isn’t up to the federal government. “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority,” he predicted.


Yet as time went on, people came to see a convention as more nefarious, forming misconceptions about what it might mean, according to new research by Robert Natelson, who recently left his post as a law professor at the University of Montana to join the Independence Institute. Those misconceptions, Natelson says, start with the very name of the proceeding.


“It is not a constitutional convention,” Natelson, who has written two forthcoming papers on the subject, told TAS. “Nobody at the time it was drafted ever called it a constitutional convention. It started to get that name only in the 20th century, as far as I can determine, when that term was applied to it by some people who were opposed to an Article V convention, because they opposed the proposed amendments.”


The Constitution itself refers to a “convention for proposing amendments.”


“It was not until the 1960s, when several conservative groups were seeking a convention to propose amendments in order to reverse some of the liberal Supreme Court decisions, that liberal scholars and activists, like Charles Black of Yale Law School, or Theodore Sorensen, the Kennedy speechwriter, basically made up this idea that what you’re doing is you’re creating a big unlimited constitutional convention that could become a circus,” he said.

Read the rest of the article and see the adjoining comments here.