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Intro to Article V States Rights
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Under Article V of Constitution, Congress, upon application of two-thirds of the states, must call a convention for proposing amendments. Proponents argue that an Article V convention, completely bypassing Congress, the President, the courts, and the federal bureaucracy, would give the states and the people a more direct role in determining how much power the federal government should have and whether some of its existing power should be returned to the states and the people. The process specified in Article V raises many questions that require careful consideration: how such a convention would work, what types of amendments it might produce, and whether some of those amendments would successfully rein in the federal government and reinvigorate federalism. With or without such a convention, however, it remains vitally important that we continue to maintain an overriding focus on holding Congress, the President, and, by extension, federal agencies accountable for the decisions they make today.
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The possibility of an Article V convention of the states has a great deal of appeal to many. With such a convention or without one, however, it remains vitally important that we continue to maintain an overriding focus on holding Congress and the President and, by extension, federal agencies accountable for the decisions they make today. —John G. Malcolm is Director of and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Heritage Foundation Findings
Many questions surrounding Article V of the Constitution merit thorough and careful consideration. Although James Madison did not object at the Philadelphia Convention to including an amendments convention in Article V, he warned “that difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.”Michael Stern, former Senior Counsel to the U.S. House of Representatives and a strong proponent of the Article V convention process, has stated that “[i]t must be acknowledged…that the purely legal issue of whether an Article V Convention may be limited cannot be definitely resolved. Constitutional scholars have long debated the question, and it is widely recognized to be a quintessentially open one.”
These questions loom large over the current calls of some advocates and state legislatures for such a convention and might well lead to attempts to frustrate the will of states that call for a limited convention by those who oppose the concept of a limited convention, want to use the convention to consider other subjects, or do not like the results of such a convention. Such challenges could take various forms including lawsuits that could take years and lead to unpredictable results. This is not an argument against proceeding with a constitutional convention—after all, the Bill of Rights emerged at a time when no procedures or customs existed for implementing Article V—so much as it is an observation that those who are pursuing a call for a convention to consider a particular amendment or subject area they favor must recognize the risk that a convention might consider and yield amendments that they dislike on other subjects.
An Article V convention might propose an amendment to restore or expand the liberties of the American people, but it also could propose an amendment that diminishes the liberties of the American people, or of some of the people. While it is no doubt true that the ratification process itself, requiring support from three-fourths of the states (38 at present), decreases the likelihood of some radical proposal ultimately becoming part of our Constitution, it is worth recalling that 27 of the 33 proposed amendments that have been sent to the states for ratification achieved the requisite number, and that was before the age of the Internet and social media–driven campaigns that can dramatically increase public pressure on those who are considering such an amendment and reduce the time devoted to thoughtful reflection.
Some argue that the risks of an Article V convention in the face of legal uncertainty are simply too great. Professor Gerald Gunther, a prominent constitutional law scholar, for instance, has warned that the road “promises controversy and confusion and confrontation at every turn.” Michael Stern, on the other hand, argues that:
It can scarcely be denied that the limited powers granted to the Congress in Article I of the Constitution have not proved to be a meaningful check on the expansion of federal power. The Article V Convention, if available as intended to check the “encroachments of the national authority,” would mitigate this risk.
Some day we may get the answers to some of the difficult and open questions about the state-initiated Article V process. If proponents of calling an Article V Convention succeed, that day may be coming soon. Regardless of the particular merits of the proposals and whether these efforts ultimately result in a convention to propose amendments to the Constitution, getting people engaged in a robust discussion of important issues regarding self-governance and the proper role of the federal and state governments in the lives of the American people is a constructive and positive development.
The possibility of an Article V convention of the states has a great deal of appeal to many. With such a convention or without one, however, it remains vitally important that we continue to maintain an overriding focus on holding Congress and the President and, by extension, federal agencies accountable for the decisions they make today.
—John G. Malcolm is Director of and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
In posting this information, I feel it is the duty of this website to provide neutral resources for information as well as presenting the information provided by members who have previously determined, through their own extensive research, that Article V a convention of States, is a promising way of controlling Big Government.-Susan Nielsen