Should Conservatives Call a Convention of States? Both Sides of Article V

There is a provision in the Constitution that Washington has never used and does not like to discuss. It lets the states bypass Congress entirely and propose amendments on their own. The men who wrote it built it on purpose, in the last week of the Convention, because they did not trust the national government to police itself.

Conservatives are divided over it, and the division is not between the sensible and the reckless. Serious constitutionalists sit on both sides. One camp says Article V's second route is the only way to restrain a federal government that will never restrain itself. The other says a convention is a door that, once opened, cannot be controlled. I'll give both a fair hearing, then tell you where I come down, and why.

What Article V says

Start with the text, which every argument on this subject must survive. Article V provides:

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.

Read it slowly. There are two routes to proposing an amendment. In the first, two-thirds of each house of Congress propose. In the second, the legislatures of two-thirds of the states, which is 34 of 50, apply, and Congress "shall call a Convention for proposing Amendments." And there is one route to ratifying: three-fourths of the states, which is 38 of 50, either through their legislatures or through ratifying conventions, whichever mode Congress chooses.

Three details matter. The convention proposes; it ratifies nothing. The verb "shall" binds Congress to call it, once the applications are in. And the three-fourths threshold means that 13 states can block anything the convention suggests. All twenty-seven amendments in American history, from the Bill of Rights to the Twenty-Seventh, came through the first route, which tells you how eagerly Congress reaches for a tool that limits Congress. The second has never produced a convention. That is the whole background of the dispute.

Why the Framers wrote it

The second route was an afterthought, and the way it came about tells you what it was for.

The early drafts of the amendment clause left the power to propose amendments to Congress alone. Near the end of the Convention, on September 15, 1787, George Mason of Virginia objected. As Madison's notes record the exchange, Mason argued that the plan as drafted would be defective because Congress would never propose amendments to cure the abuses of its own power. If the government became oppressive, he reasoned, the people would have no way to obtain amendments of the proper kind. The delegates responded by adding the second route: on the application of two-thirds of the state legislatures, Congress would be obliged to call a convention.

Notice who was talking. Mason was not a radical. He was a Virginia planter and the author of the Virginia Declaration of Rights, and he refused to sign the Constitution partly because it lacked a bill of rights. His worry was the very one conservatives voice today: those in power will not reform themselves.

Hamilton, a nationalist who had no objection to a strong central government, defended the clause in Federalist 85. He wrote that the words of the article "are peremptory," that Congress "shall call a convention," and that nothing in this particular "is left to the discretion of that body." Madison, in Federalist 43, said that the amendment clause "guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults." Put those two together and you have the design. The clause should not be so easy that every passing mood rewrites the charter, and not so hard that the people are stuck with its defects forever. The state-initiated route exists to prevent the second failure.

The case for calling a convention

Here is the first conservative position, stated as its defenders would state it.

One: the federal government has outgrown its constitutional limits, and it will not fix that. The Constitution gave Congress a list of enumerated powers, and the Tenth Amendment reserves the rest to the states or the people. The national debt, the sprawl of the administrative state and the growth of federal spending are not accidents. They are the output of a system in which Congress benefits from the growth. A body that profits from the problem will not propose the cure. The Framers foresaw this, which is why Mason insisted on the second route.

Two: the second route has worked, indirectly, before. In the 1890s and 1900s, state legislatures passed applications for a convention to propose direct election of senators, because the Senate, elected by the state legislatures themselves, would not propose it. A large number of states had applied, and the pressure told. The Senate yielded and Congress proposed what became the Seventeenth Amendment, ratified in 1913. You can debate whether that amendment was wise, and conservatives do. But the episode shows that a credible threat of an Article V convention can move Congress to act. More recently, from the 1970s into the 1980s, a campaign by state legislatures for a convention on a balanced budget amendment reached 32 of the 34 states needed. That fell short, but it pushed Congress to take the idea seriously. Those are the strongest precedents the supporters have.

Three: the safeguard is real. A convention can only propose. Nothing becomes part of the Constitution until 38 states ratify it. That means that even if a convention produced something terrible, thirteen states, a number that can be found in any political climate, could kill it.

Four: the alternative is the status quo. If you think the republic is heading in the wrong direction and that Congress will never act, then refusing to use the one tool the Framers gave you is a decision, not a neutral position. Sometimes the risk of doing nothing is larger than the risk of doing something.

The case against

Now the other conservative position, which deserves equal respect.

One: nobody knows the rules. Article V says Congress "shall call a Convention," and then it stops. It says nothing about how delegates are chosen, how many each state sends, whether each state has one vote or votes in proportion to its population, what the agenda is, or who decides whether an application is valid. The Constitution is silent. Congress would write the rules, and the people who might lose the most from a convention would be setting its procedures. These are not trivial gaps. They are the whole machine.

Two: the precedent of 1787 itself. The Convention that met in Philadelphia was called to amend the Articles of Confederation. Instead, it threw them out and wrote a new Constitution. The delegates were charged with revising the old government, and they replaced it. They also changed the ratification rule from unanimity to nine of thirteen states. If the original convention could exceed its instructions, why should a new one stay within them? Opponents call this the runaway convention, and it is the oldest argument against the idea.

Three: the three-fourths safeguard is only as good as the political climate. The opponents answer that thirteen states may block ratification, but the safeguard protects only if you trust the thirteen. A bad idea that rides a wave of public feeling can sweep many states. The Prohibition amendment, which ran through the states in a little over a year, is a vivid reminder, and it is discussed in Prohibition Proves an Amendment Can Be a Mistake and Can Be Repealed. The more the convention is public and national, the more the politics becomes a national contest, and the more the process looks like a campaign.

Four: the outcome might not be conservative. The people who favor a convention imagine it will produce a balanced budget amendment and term limits. But the delegates will be chosen by the state legislatures, and many of those are not controlled by conservatives. A convention is a forum, not a vote of the people. Conservatives who open it must accept that the other side will be present with proposals of its own.

Where I come down

I come down for the second route, with guardrails, and I'll explain the reasoning in numbered form, because the opponents' strongest points are answered best one at a time.

First, the text commands it. Article V is not a loophole. It is a clause the Framers wrote on purpose. A conservative who reveres the text cannot treat one of its two methods as unthinkable. To declare the state-initiated route too dangerous to use is to say that the Founders made a mistake, and I'd want a better argument for that than "we might lose."

Second, the runaway-convention fear misreads 1787. The Philadelphia Convention did exceed its instructions, but notice what happened afterward: the proposal went to the people. The Constitution took effect only after nine states ratified it in specially elected conventions, which is the point of Article VII, as described in Nine of Thirteen, Why Article VII Sidestepped the Articles of Confederation. What constrained the work was not the instruction, but the ratification. Article V keeps that check, and raises it: three-fourths of the states, not nine of thirteen. A convention in the modern era that proposed something outlandish would have to survive 38 legislatures. If you believe that thirty-eight state legislatures would approve something radical, your quarrel is with the voters, not with the convention.

Third, the unresolved questions can be narrowed by the states themselves. Opponents are right that the rules are unclear. The answer is to settle as many as possible before a convention meets. A state legislature can limit its own delegates by statute, can require them to vote only within the subject of the application, and can recall any who stray. The practical steps are covered in How a State Legislature Applies for an Article V Convention, Step by Step. Applications can be written narrowly, on a single subject, such as a balanced budget amendment, and a state can specify in its application the terms it expects. Whether Congress would honor those limits is unsettled, which is exactly why a careful campaign should insist on them in advance and reserve the right to rescind its application.

Fourth, the threat is itself the point. Remember the Seventeenth Amendment. The history suggests that Congress changes course when it sees that thirty-odd states are serious. Even a campaign that falls short can bring a proposal through the first route, which is the easier one. If so, the state-initiated route is partly a lever on Congress, and the lever is more powerful the more credible the campaign.

Fifth, the alternatives are not neutral. The tools conservatives have used for decades, litigation, elections, appropriations riders, have produced real wins. They have also been reversed after each election. A constitutional amendment, once ratified, is the one tool that lasts. Think of the Twenty-Second Amendment, which limits the President to two terms. It came through the first route, but it shows what a durable limit looks like. A balanced budget requirement or a term limit on members of Congress would outlast any political swing.

The strongest objection, answered

The objection I take most seriously is that I am trusting the process. If the delegates are chosen by legislatures, and the rules are unclear, and the political climate is unpredictable, then calling a convention is a gamble. Perhaps so. Every constitutional method is a gamble on the character of the people who use it. The Framers gambled on that, and the gamble produced the Constitution.

But a gamble with a safeguard is not the same as a gamble without one, and Article V's three-fourths rule is a safeguard that has held for more than two centuries. It is the reason a bad amendment has not stuck. I'd also say that a conservative who is unwilling to trust fifty state legislatures with the question of whether to ratify a proposal is a conservative who has already given up on federalism. Federalism Lets Fifty States Experiment, and the Constitution Planned It makes the case for trusting the states. If we don't trust them with the Constitution, why do we trust them with schools, roads and criminal law?

For the other side of this debate in full, see A Convention of States Is the Founders' Safety Valve, Weighed Honestly, and for the policy that many convention supporters most want, a balanced budget amendment, the case for it and the conservative doubts. For the count of what the amendment process has produced, Twenty-Seven Amendments Out of Over Eleven Thousand Proposals, by the Numbers is a sobering read.

Three tests for any state's application

If your state is considering an application, ask it three questions.

1. Is the subject narrow? An application that names a single, defined subject is easier to hold the convention to than one that asks for "amendments" in general.
2. Are the delegates bound? The state's law should limit its delegates to the subject, set the penalty for exceeding it, and provide for their removal.
3. Does the state reserve the right to withdraw? If the convention's rules or its agenda go sideways, the state should have a clear path to rescind its application.

None of these closes every question. But a state that answers yes three times has done more to shape the process than a state that simply sends a resolution.

The case in brief

1. Article V gives two routes to propose an amendment, Congress or a convention called on the application of 34 states, and one route to ratify, 38 states, so a convention proposes and the states decide.
2. George Mason won the second route on September 15, 1787, because Congress could not be trusted to propose limits on itself, and Hamilton wrote in Federalist 85 that Congress "shall call a convention" with no discretion.
3. The strongest case against is that the rules are unwritten and the 1787 Convention exceeded its instructions, but the three-fourths ratification rule makes thirteen states a blocking force.
4. Narrow applications, bound delegates and a right to rescind answer most of the unresolved questions, and the credible threat of a convention helped bring about the Seventeenth Amendment.
5. A conservative who trusts the text and the states should be willing to use the clause the Framers wrote for the day when Washington will not restrain itself.

What you can do: read your state legislature's website to see whether an Article V application is pending or has passed, and write your state representative asking whether it names a single subject and binds its delegates.