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Some saying that if the several States call for a "Constitutional
Convention" that they could re-write the Constitution. That fear is
blatantly FALSE.
The States cannot call for a "Constitutional Convention", as a matter of
FACT, no one can!
The Article requires
that the legislatures of two-thirds of the states apply for an Article V
Convention. According to Hamilton, Madison and other Founders, along
with several US Supreme Court decisions, Congress is then obliged to
call a Convention for Proposing Amendments. The states would send
delegates to the convention who would in turn propose amendments
directly, bypassing Congress.
One thing is
perfectly clear: Article V gives the States Assembled in Convention the
same proposal rights as Congress -- no more, no less. And no matter
whether an amendment originates with Congress or a Convention for
Proposing Amendments, it must be ratified by three-fourths of the states
before it can become part of the Constitution.
Fearing a tyrannical
Congress would block the amendment process, the Framers formulated
Article V, wording it so as to fence off the Constitution from hostile
or careless hands. They were careful to enumerate Three Forbidden
Subjects.
1. Altering the
arrangement known as slavery until 1808, a ban that has been lifted both
by time and war.
2. Altering the
arrangement of equal representation in the Senate.
3. Writing a new
constitution.
The Framers took
great pains to avoid using the term “constitutional convention”.
Instead, the Founding Document refers to a “Convention for proposing
Amendments...as part of this Constitution”. An Article V Convention is
strictly limited to proposing amendments to the Constitution of 1787,
and it is forbidden to consider, compose, or even discuss a new
constitution. No matter what amendments may be proposed, the
Constitution must remain intact, else the actions of the convention
become unconstitutional. Unless Article V is amended first to allow it,
a Convention for Proposing Amendments can never become a true
constitutional convention, i.e., it can never write a new constitution.
And neither can Congress.
How It Would Work
Delegates would be elected by the people, not appointed by a governor or
state legislature. The sovereignty possessed by an Article V Convention
is identical and equal to Congress’ as far as the mandatory process is
concerned. As citizens are elected to Congress, Delegates would be
apportioned to the states on the basis of population according to the
Supreme Court’s “one man/one vote” decision. One possible formula would
elect a delegate from each congressional district and two from each
state, thus reflecting the makeup of the Electoral College.
An Article V
Convention is the property of the states, and the language used by the
states to request Congress to call a convention defines the purview of
that convention. In its petitioning language, the states may ask for a
convention to address one subject, a plethora of subjects, or even ask
for a general convention to address any subject, i.e. a revision of the
Constitution.
Upon convening, a
Convention for Proposing Amendments would elect its own officers and
establish its own rules of order. Because an Article V Convention,
during the brief period of its existence, possesses the same sovereignty
as the other three branches of government, Congress would not have the
right to regulate it or restrict its purview. There is nothing
threatening here, because according to Article V, Congress possesses
identical powers.
Amendment proposals
would go through deliberation and vigorous debate as would any amendment
proposed in Congress. The convention would determine the bar for
approving an amendment proposal to pass it on to the states for
ratification. This could be a simple majority, a two-thirds majority, or
anything that the convention chose.
Once all amendment
proposals had been passed to the states for ratification or rejected,
the convention would adjourn permanently, and the delegates would become
ordinary citizens again.
Congress would then
submit the proposed amendments to the Several States by deciding whether
the states should use the Legislative Method or Ratifying Convention
Method of ratification.
If Congress chooses
the Ratifying Convention Method, each state would hold an election for
delegates to its state ratifying convention, which would be apportioned
according to population.
Each state
legislature (or state ratifying convention, if Congress so chose) would
vote up or down on each proposed amendment. If three-fourths of the
states ratified an amendment proposal, it would become part of the
Constitution. |