Amending the Constitution

Deanie Anderson, LWVMPC Program Chair and LWVUS

In the 2015-16 year LWVMP had two national studies–Money in Politics (see the March Focus) and Amending the Constitution.

Article V of the U.S. Constitution provides two ways of proposing amendments to the nation’s fundamental charter.

• Congress, by a two-thirds vote of both chambers, may propose constitutional amendments to the states for ratification.
• The legislatures of two-thirds of the states (34 at present) may ask Congress to call a convention to propose amendments to the Constitution; this is commonly called an Article V Convention. Amendments proposed by either method must be ratified by three-fourths of the states, 38 at present.

The first method has been used by Congress to submit 33 amendments to the states, beginning with the Bill of Rights. Of these, 27 were approved; 26 are currently in effect, while one–the 18th Amendment (Prohibition)–was ultimately repealed. The second method, an Article V Convention, has never been successfully invoked.

As part of the League study we will explore the process for proposing an Article V Convention in order to determine whether LWVUS would support such a convention and if so, under what circumstances. We will look at a number of questions on how the Article V Convention process would work and try to answer questions such as the following:

Role of the States o How does a state apply for a convention? o Can a state limit its application to a single topic? o Is a simple majority enough for legislative passage? o Has your state ever issued an application for an Article V Convention?

Role of Congress o How are state applications counted? o Must all applications counted refer to the same subject? o Or, are all state applications counted together (regardless of subject)? o Are specifically worded amendments permitted? o Are applications valid indefinitely, or is there a time limit? o Who decides? o Can Congress be forced to call a convention? o Can Congress set, limit, or expand the topics for a convention? o Can Congress determine the number and method by which delegates are chosen or the rules of procedure?

Delegate selection o How can/should delegates be selected by the states? Action by the legislature? Appointed? By whom? Election? o Can states have different selection systems? Different number of delegates? o How should delegates be apportioned? o By state population at large, with each state’s representation based on its total population? o By state, with each state having the same number of representatives?

Convention action o Does each state have one vote or is voting based on population? o What are and who sets the rules of procedure, including voting by state or by individual delegates + majority or super majority vote? o Can the convention hold secret sessions? o When does the convention end?

Ratification o Is Congress required to send any amendments proposed by an Article V Convention to the states for ratification? o If the Convention proposes multiple amendments, can the states ratify selectively? o Who pays? Can the President block an Article V Convention by vetoing any appropriation for the Convention’s work?

Court review: What, if anything, is reviewable in federal or state courts?

Volunteer: If you’d like to start reading, here is a paper published by The Century Foundation in 1999 called Great and Extraordinary Occasions: Developing Guidelines for Consitutional Change; it can be downloaded from:  http://www.constitutionproject.org/wp-content/uploads/2012/09/32.pdf. This paper, developed by a long list of eminent lawyers and scholars, presents eight guidelines for constitutional amendments. It analyzes historical amendments and proposals discussed during the 104th and 105th Congresses (1995 – 1999) against these guidelines.