Wednesday, October 22, 2014

that extreme difficulty which might perpetuate its discovered faults

Some observations on the nuances of Article V are in order. First, the plain language of Article V is clear and decisive: Congress shall call a “Convention for proposing Amendments,” not a convention for proposing an amendment. It is therefore clear than an Article V convention has the power to consider various issues and the right to submit various amendments to the states for consideration and, if warranted, ratification. In addition, the language in Article V does not authorize the states to apply for an amendment; rather they are only authorized to apply for a convention for proposing amendments.

Second, the focus of Article V is clearly on the ability of the states to demand a convention, and not on the subjects to be considered by such a convention. Rather, the focus is on the process of amendment, as demonstrated by the language of the Constitutional Convention delegates Morris and Gerry who “moved to amend the article so as to require a Convention on application of 2/3 of the Sts...”. Therefore, Congress is without authority to obstruct a convention in any manner it might attempt, including failing to call for one in a timely fashion as it is required to do. 

Last, James Madison addressed Article V in The Federalist No. 43 when he discussed the great value of allowing both Congress and the states to proposed changes in the Constitution:
“‘[t]o provide for amendments to be ratified by three-fourths of the States, under two exceptions only.’ That useful alterations will be suggested by experience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the Convention seems to be stamped with ever mark of propriety. It guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other.”

Clearly, therefore, a convention to propose amendments was intended as a check to regulate excesses of the national government, and it was not intended that the national government could avoid, deny, regulate or otherwise blunt this constitutional check for its own self-interest.


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