The Article V Convention/Madison Amendment
Everywhere you look today there’s an article / commentary pushing for an Article V Convention of States. It’s easy to understand why. Our federal government is out of control, the political ruling class does pretty much what it wants to and We The People are taking it on the chin; we're frustrated and fed up. Something has to be done. The people want to regain control of their government. The Article V Convention of States appears to be a solution.
Ever since Mark Levin’s book came out advocating the convention, with his proposed 11 amendments, there’s been a stampede to have the states correct some of our many ills. There’s also been some backlash primarily due to fear of a “run away convention.” A convention that gets out of control and does irreparable damage to our Constitutional Republic. Our situation is bad now but could get worse if the wrong action(s) is taken at a convention.
Let’s back up a bit and set the stage. We have 27 amendments to the US Constitution; all proposed by Congress and ratified by the states. There are at least two that are questionable as to whether they were really properly ratified and are legal amendments. You can read about those two, the 16th and 17th amendments, here. But all 27 thus far have been Congress proposing and the states ratifying. Now, the Constitution allows for another approach. Article V says:
“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, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
This means that the states can proposed an amendment (s) if 2/3 agree to it (34 states), draft it, run it through Congress back to the states, and if ¾ of the states (38) ratify it, it becomes part of the US Constitution. This has never been done but is authorized by the Constitution.
Historically, since 1788 when records began being kept, there have been @370 state applications for a convention. Every state except Hawaii has filed at least one application. Some were subsequently withdrawn, some were acted on by Congress without the convention process by proposing / passing new amendments. Since 2000, there have been 22 official applications mostly dealing with the debt and a balanced budget. Throughout history the issue prompting the applications to be submitted has run the gamut depending on the “hot” issue in that state at that point in time. None have had the requisite number of states to hold the convention.
The Convention of States Organization is currently organizing a nationwide effort to have said convention. Many states are currently drafting bills with some desiring to address different issues. The movement is also attracting big named politicos as backing. And while many “thinking” people are objecting for many reasons, the major one being the “run away” aspect, this organization refutes that fear, sort of. They point out that it takes 34 states to agree on some amendment and 38 to ratify it. How can it get out of control with that level of scrutiny?
Well, before there was a US Constitution, there were the Articles of Confederation; THE law of the land immediately after the Revolutionary War. The Articles proved to be inadequate and a convention was called to amend these Articles. You might say it got out of hand as the Articles were completely tossed aside and the Constitution was written and ratified. In that case the end results were good for the Republic. Our Constitution is a model for the world. We were not a divided nation in 1787. We are divided today, deeply so and by design. Divide and conquer is a strategy of the progressive movement and it has worked. This divisiveness may reinforce the argument against a run away convention. It may also guarantee that nothing whatsoever gets accomplished. That the convention attendees can’t even come together on a single issue, let along Levin’s eleven proposals. But there are “back room deals” nowadays. “You scratch my back I’ll scratch yours.” Call me a skeptic but I don’t trust politicians today, even supposed independent, bipartisan delegates from the populace at large, to come together in a process that has never been done in our 230 year history, and under such divisiveness as we have today. I’d prefer more control.
And there is a way to get that control before the Article V Convention gavels in the first meeting. It’s called the Madison Amendment; named after guess who? In the Federalist Papers Madison talked about such matters; balance of powers; state’s rights; checks and balances; etc. Now, Madison didn’t propose this specific amendment, it simply bears his name as the movement pushing this level of control desired to do. It reads:
“ARTICLE____ . The Congress, on Application of the Legislatures of two thirds of the several States, which all contain an identical Amendment, shall call a Convention solely to decide whether to propose that specific Amendment to the States, which, if proposed shall be valid to all intents and purposes as part of the Constitution when ratified pursuant to Article V.”
In other words, an open-ended convention is never called. A convention is called only to propose one specific amendment and nothing more. Therefore, the Madison Amendment, if proposed by Congress and ratified by 38 states, would become the 28th Amendment to the Constitution. From that point forward states could call Article V conventions whenever so desired, to propose only one amendment to the Constitution. That stops a “run away” convention in it’s tracks.
So, if We The People wanted a Balanced Budget Amendment and the Congress wouldn’t act, then the states could call an Article V for the purpose of addressing a Balanced Budget Amendment ONLY. Once that’s over, if we the people wanted Term Limits on Congress and they wouldn’t act (and they won’t), the states could do another Article V for the express purpose of addressing Term Limits, only, without fear of getting out of control. Granted this takes time. Good. That’s what we want. A slow deliberative process, well thought out, and under control. And in my judgement, should a convention be called after the 28th amendment was law, and some delegate or group of delegates attempted to introduce anything other than the already agreed upon amendment, the convention would immediately adjourn with no action taken at all, not even on the originally agreed upon amendment.
The Madison Amendment was introduced in Congress in July, 2010 on a bipartisan basis - two republicans and two democrats. It got nowhere.
In my opinion, we should go easy on this Article V Convention of States movement. No need to make matters worse. I’d propose the Madison Amendment again, push it to ratification, then proceed with the Conventions. If it isn’t ratified, that says something about the merits of holding these Conventions. Maybe the states don’t want that level of control.