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8/3/2019 Renewing Federalism by Reforming Article V: Defects in the Constitutional Amendment Process, Cato Policy Analysis No. 691

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Executive Summary

The constitutional amendment procedure ofArticle V is defective because the national convention amendment method does not work.Because no amendment can be enacted withoutCongresss approval, limitations on the federalgovernment that Congress opposes are virtuallyimpossible to pass. This defect may have pre-vented the enactment of several constitutionalamendments that would have constrained

Congress, such as amendments establishing abalanced budget limitation, a line-item veto,or congressional term limits. The increasing-ly nationalist character of our constitutional

charter may not be the result of modern valuesor circumstances, but an artifact of a distortedamendment procedure. Article V should be re-formed to allow two-thirds of the state legisla-tures to propose a constitutional amendmentwhich would then be ratified or rejected by thestates, acting through state conventions or stateballot measures. Such a return of power to thestates would militate against our overly central-

ized government by helping to restore the fed-eralist character of our Constitution. Moreover,a strategy exists that would allow this reform tobe enacted.

Renewing Federalism by Reforming Article VDefects in the Constitutional Amendment Process

and a Reform Proposal

by Michael B. Rappaport

No. 691 January 18, 2012

Michael B. Rappaport is professor of law at the University of San Diego, where he also serves as the director of theCenter for the Study of Constitutional Originalism.


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The onlyeffective way of

amending theU.S. Constitution

requiresCongresss

approval.

Introduction

Every constitution requires change oc-casionally. An amendment method must bestrict enough so that the government can-

not easily change existing constitutionalprovisions, but not so strict that it preventsthe changes necessary to reform and updatethe constitution. Article V of the U.S. Con-stitution sets out its amendment process.Although some experts think Article V is toostrict,1 its supermajority rules have benefits,such as promoting better amendments.2The real defect in Article V lies elsewhere.

The Framers of the U.S. Constitutiontried to establish an amendment processthat located the power to propose amend-

ments both in Congress and outside of Con-gress. In fact, though, the noncongressionalamendment process does not work. Thus,the only effective way of amending the U.S.Constitution requires Congresss approval,and therefore Congress enjoys a veto overall amendments. No amendment that failsto secure the support of two-thirds of bothhouses of Congress has a realistic chance ofbeing enacted. This effective congressionalveto has significant normative implications.It suggests that the Constitution has, over

time, become distorted, as the full range ofamendments that are needed to correct orupdate the Constitution have not been en-acted. Instead, only those that reflect con-gressional preferences have been passed.

Constitutional amendments that reduceor constrain Congresss power are unlikelyto be enacted, even if they are necessary tocheck congressional excesses or to improvethe operation of the government. Moreover,constitutional amendments that would con-flict with Congresss ordinary preferences

amendments that would reduce the powerof the national government or increase thepower of the stateswould also appear toface an uphill battle. In this policy analysisI explore this constitutional defect, explainwhy it occurs, specify how it damages theConstitution, offer a reform that would cor-rect the defect, and identify a realistic meth-

od for enacting that reform.

Article VsAmendment Methods

Article V of the U.S. Constitution describes, in a single paragraph, the variousmethods for amending the Constitution. Itprovides:

The Congress, whenever two thirds ofboth Houses shall deem it necessary,shall propose Amendments to thisConstitution, or, on the Applicationof the Legislatures of two thirds of theseveral States, shall call a Convention

for proposing Amendments, which,in either Case, shall be valid to allIntents and Purposes, as Part of thisConstitution, when ratified by theLegislatures of three fourths of theseveral States, or by Conventions inthree fourths thereof, as the one orthe other Mode of Ratification may beproposed by the Congress; Providedthat no Amendment which may bemade prior to the Year One thousandeight hundred and eight shall in any

Manner affect the first and fourthClauses in the Ninth Section of thefirst Article; and that no State, with-out its Consent, shall be deprived ofits equal Suffrage in the Senate.

Article V thus establishes a two-step pro-cess for enacting an amendment: first anamendment is proposed and then it is rati-fied. There are also two ways of completingeach step. An amendment can be proposedeither by two-thirds of each house of Con-

gress or by two-thirds of the state legislaturesapplying for Congress to call a conventionthat would propose an amendment. Simi-larly, an amendment can be ratified by three-quarters of the states, either through theirlegislatures or through state conventions.

Article Vs purpose in providing alternative methods is evident: to prevent a single


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No constitutionamendmentshave ever beenenacted underthe nationalconventionmethod becausetwo-thirds ofthe states will

never apply for aconvention.

government entity from having a veto overthe passage of an amendment. While Con-gress is given the authority to proposeamendments, the convention method al-lows the nation to bypass Congress and

enact amendments that would constrainCongresss powers. Similarly, while the statelegislatures can ratify amendments, theymight choose to reject amendments thatconstrain their powers. Therefore, the Con-stitution allows Congress to select for rati-fication by state conventions, which wouldhave different interests than the state legis-latures.3

Statements made at the Founding sup-port this interpretation of the amendmentprocess. George Mason argued at the Phila-

delphia Convention that [i]t would be im-proper to require the consent of the Natl.Legislature, because they may abuse theirpower, and refuse their consent on that veryaccount.4 Similarly, James Madison wrotein theFederalist No. 43 that Article V equallyenables the general and the State govern-ments to originate the amendment of errors,as they may be pointed out by the experienceon one side, or on the other.5

The convention method thus appearsto have been designed to prevent Congress

from having a veto over potential amend-ments. Under this method, two-thirds ofthe state legislatures can bypass Congressby applying for a constitutional conven-tion. The convention has the job of pro-posing a constitutional amendment, whichthen has to be ratified by three-quarters ofthe states. But this constitutional amend-ment method has never been used. The na-tion has always relied on the Congressionalproposal method.6

The reason for the lack of use of the na-

tional convention method is that it does notwork. It is broken. It is not merely that noconstitutional amendments have ever beenenacted under this method, it is also thatthere are strong reasons to believe that two-thirds of the states will never apply for aconvention. I now turn to examining thosereasons in detail.

Defects of theConvention Method

Now that I have briefly outlined the na-tional convention method, we are in a posi-

tion to discuss the various problems withthe process. These problems include coor-dination difficulties, the risk that Congresswill impede the process, the possibility of arunaway convention, and, most important-ly, the ineffectiveness of the process. Signifi-cantly, these different problems largely havea single source: uncertaintyuncertaintyabout what the law requires and uncertaintyabout the actions of the relevant political ac-tors.

Coordination and Congressional PowerOne serious problem relates to coordi-

nation among the states when they are ap-plying for a convention. A state seeking alimited convention must decide on whatsubject to apply for one. One state may callfor a limited convention on a certain subjectonly to find another state calling for it on amarginally different subject. It may be diffi-cult for the states to coordinate their appli-cations so that they match. The state legis-latures must also coordinate on whether to

apply for a limited or unlimited convention.Coordination is also needed between thestates and Congress. Even if the state legis-latures all apply for a limited convention,Congress might conclude that the limitedconventions are unconstitutional and there-fore treat the applications as invalid.

A second problem derives from the po-tentially significant role that Congress playsin the national convention process. Becausethe national convention method does notrequire the approval of Congress to propose

or ratify an amendment, Congress would belikely to oppose the amendments proposedunder this process. One way that Congresscan act against such amendments involvesthe state applications for conventions. If dif-ferent states apply for limited conventionscovering marginally different subjects, thenit is quite possible that Congress will use its


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It is possiblethat the stateswill authorize

a limitedconvention on

one subject, butthe convention

will end upproposing an

amendment on adifferent subject.

discretion to determine that the requisitenumber of states have not agreed on a sin-gle subject to apply for a convention. Simi-larly, even if two-thirds of the states appliedfor the same limited convention, Congress

might use its discretion to determine thatlimited conventions are not allowed.Congress might also use its power to in-

terfere with the process in other ways. Al-though it is not clear whether Congress hasthe authority to regulate the operation of theconvention or the selection of its delegates,Congress still might assert these powers toimpede the passage of amendments it dis-likes. For example, Congress could choose aconvention voting rule, such as two-thirds,that makes it harder for the convention to

adopt a proposal. Or Congress might assign voting rights that make it less likely for aproposal to be passed.

The Possibility of a Runaway Convention. A third set of problems afflicting the na-tional convention process derives from thepossibility of a runaway convention. Becausethe rules are not clear, it is possible that thestates will authorize a limited conventionon one subject, but the convention will endup proposing an amendment on a differ-ent subjectwhat I call a nonconforming

amendment. Moreover, that nonconformingamendment might then be ratified by thestates. This possibility may chill the desireamong some states for calling a convention.

A runaway convention might arise in var-ious ways. First, the states might apply for,and Congress might call, a limited conven-tion, but then the convention might pro-pose an amendment that ignores the limita-tion and instead proposes a nonconformingamendment. Second, the states might ap-ply for a limited convention, but Congress

might believe that limited conventions arenot constitutionally recognized. Yet, Con-gress might mistakenly interpret one ormore of the state applications as applyingfor an unlimited convention in the eventthat Congress concluded that limited con-ventions were unconstitutional. Finally, thestates might apply for a limited convention,

but Congress might be unable to agree onwhether there are limited or unlimited conventions. Congress might then simply calfor a convention without specifying the typeof convention. The convention itself might

then decide that it is an unlimited conven-tion. There are, no doubt, other possibilities A runaway convention is not merely a

theoretical possibility, but could easily arise,as the runaway Philadelphia Convention of1787 illustrates. A nonconforming amend-ment might become popular at the conven-tion for a variety of reasons, including be-cause an issue suddenly becomes prominentor because some of the delegates choose topromote another amendment. It is true thatthe nonconforming amendment would still

need to be ratified by the states, but thatmight occur even though the state legis-latures did not intend to ratify a differentamendment when they applied for the con-vention. A proposal can take on a life of itsown, and this momentum can persuade leg-islators to vote for it, even though they didnot initially expect to support it when theyapplied for the convention. More impor-tantly, Congress might decide that the rati-fication decision as to the nonconformingamendment should be made by state con-

ventions rather than state legislatures. A runaway convention that resulted in

the ratification of a nonconforming amend-ment would create several undesirable re-sults. First, after the amendment was rati-fied, the nationin most instances throughthe courtswould have to determine wheth-er it was constitutional and should be en-forced. This decision would be problematichowever it was resolved. If the amendmentwere found to be valid, then its opponentswould tend to believe that part of the Consti-

tution was illegal, because the limits on theconvention had been abridged. If the amend-ment were found to be invalid, then its sup-porters would tend to claim that part of theConstitution had been nullified, because thecourts had improperly second-guessed thedecisions of the convention and of three-quarters of the states. In either case, there


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Because ofthe possibilityof a runawayconvention, stat

legislatures areunlikely to applyfor a nationalconvention inthe numbersnecessary torequire Congresto call one.

would be a significant dispute about thecontent of the nations fundamental law.Such disputes can be extremely divisive, es-pecially in a pluralistic country like the Unit-ed States that relies on the Constitution as a

source of allegiance and a symbol of nationalunity.7 One can only imagine the conflict ifthe dispute involved a hotly contested issue,such as an amendment outlawing or protect-ing same-sex marriage.

Another problem with a runaway conven-tion is that it can produce a constitutionalamendment through a process that employsless scrutiny than either the congressionalamendment process or the limited con-vention process. One of the key features ofconstitutional amendments under the Con-

stitution is that they are required to passthrough two supermajority rulesonce atthe proposing stage and again at the ratifica-tion stage. John McGinnis and I have arguedthat this double-supermajoritarian processproduces high-quality constitutional provi-sions to which the nation will feel allegiance.Reducing the scrutiny needed to enact con-stitutional provisions would risk under-mining these important values. Enactinga constitutional amendment through therunaway convention process subjects it to

less scrutiny than under either the congres-sional-amendment process or the limitedconvention process. Under the congressio-nal amendment process, a specific, writtenamendment must secure two-thirds of eachhouse of Congress and three-quarters of thestates. Under the runaway convention pro-cedure, two-thirds of the states will have ap-proved a different amendment or subject.Thus, their actions provide no scrutiny forthe different amendment that passes. Whilethat amendment is approved by the conven-

tion, this approval does not substitute forthe two-thirds approval of the Congress. Ifthe convention employs a majority votingrule, then the degree of scrutiny will clearlybe less than the two-thirds vote required forCongress to propose an amendment. More-over, Congress approves the amendmentbicamerally, through a two-thirds vote in

each house, which is more difficult to ob-tain than through a single vote of the con-vention. Thus, even if the convention uses atwo-thirds supermajority rule, it will still beweaker than the congressional amendment

process, because the convention lacks Con-gresss bicameralism.The runaway convention process also

subjects the resulting amendment to lessscrutiny than the limited convention pro-cess. While the amendment produced bythe runaway convention process is not scru-tinized by the states when they apply for aconvention, the amendment produced bythe limited process is. Moreover, the limitedconvention process scrutinizes the resultingamendment to a degree comparable to that

imposed by the congressional amendmentprocess. Under the limited convention pro-cess, two-thirds of the state legislatures ap-prove either the basic idea of the amendment(if they seek a convention limited to a specif-ic subject) or the amendment itself (if theyseek a convention limited to a specificallyworded amendment). The convention thenapproves a specific amendment. By contrast,under the congressional amendment proce-dure, two-thirds of each house approves aspecific amendment. The approval by two-

thirds of the state legislatures, and then bywhat would probably be a majority of theconvention, appears similar to approval bytwo-thirds of both houses of Congress.

The Unwillingness to Apply for a Con-vention. Although these problems are im-portant, the biggest defect in the nationalconvention process is the result of a combi-nation of these factors: the national conven-tion method simply does not work. Becauseof the possibility of a runaway conventionand the other uncertainties, state legisla-

tures are exceedingly unlikely to apply fora national convention in the numbers nec-essary to require Congress to call one. Con-sequently, the national convention processhas never produced an amendmentor evena convention.

Under the existing national convention-amendment procedure, state legislators face


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The historicaldevelopment

towards anationalist

Constitution mayactually be the

result of a brokenamendment

system.

both additional costs and reduced benefitsin choosing to apply for a convention. Thefirst of these costs is the possibility of a run-away convention that results in an enactedamendment that they strongly oppose. Fur-

ther, since there are no limits on the amend-ments that the runaway convention mightproduce, the legislators can imagine a wholerange of amendments that they would findobjectionable.8 And because the productsof the runaway convention are not subjectto the same degree of scrutiny that otheramendments are, it would be easier for leg-islators to imagine that bad amendmentsmight be enacted. Second, state legislatorsmust also include, within the costs of a con-vention, the possibility that a runaway con-

vention will produce a constitutional crisisover the validity of the amendment it enacts.

In addition to these costs, state legislatorsmust also consider the reduced benefits ofthe convention method in that this methodis less likely to result in the enactment of theamendment that they desire. They must en-tertain the possibility that Congress will useits important role in the amendment processto block passage of an amendment that Con-gress refused to pass. State legislators mustalso consider the possibility that coordina-

tion problems between the different statesmay also cause the applications to fail.

These considerations heavily influencethe probability that legislators will vote topropose an amendment. The possibility thata strongly disliked amendment will be en-acted and a constitutional crisis will result,compounded by the reduced chance that adesired amendment will be passed becauseof Congresss actions and the lack of statecoordination, makes it much less desirablefor legislators to apply for a convention.

This analysis, then, explains why the na-tional convention process fails to produceeither conventions or amendments.9 Evenunder a functioning amendment process,state legislators would be unlikely to seek toamend the Constitution very often. Whenthis low propensity to amend is combinedwith the increased costs and reduced ben-

efits of seeking an amendment under theconvention process, the result is a situationwhere state legislators are never willing, inthe requisite numbers, to apply for a con-vention. The national convention process is

broken.

Harm Done

This paper so far has been largely descrip-tive, arguing that the national conventionprocedure does not produce amendments. Inow turn to the significant normative con-sequences that flow from the ineffectivenessof the convention process. First, I argue thatthe failure of the convention process not

only renders the amendment procedures de-fective, but also serves, over time, to distortthe entire Constitution. Second, I contendthat the failure of the convention processmay have had a significant effect on theConstitution, making it more nationalistand less federalist. Thus, the historical development towards a nationalist Constitution, which has been held to reflect peoples values and modern circumstances, may actually be the result of a broken amendmentsystem. Finally, in the last two sections, I

argue that a constitutional amendmentprocess similar to the national conventionmethod, but without the defects, is both de-sirable and capable of being enacted.

To assess the normative consequences ofthe failure of the national convention pro-cess, it is useful to consider not merely theexisting Article V, but also two other alter-native amendment processes. First, imaginethat the Constitution did not contain anyamendment provisions at all.10 Indeed, if itwere read as having a static meaning, then

there would be no method for changing it. Itseems clear that such a constitution would benormatively problematic for at least two ba-sic reasons. First, it would, over time, come tobe less in accord with popular values. Whilethe original constitution reflected publicsentiment because it was enacted througha process that required approval of popular


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The dominantpattern ofconstitutionalamendmentsreveals a processthat has neitherplaced checkson Congressor the federalgovernment,nor providedprotections tothe states.

representatives, as values and circumstanceschanged it would become out-of-date andwould no longer reflect the publics views.Second, the constitution would, over time,exhibit less desirable provisions. If constitu-

tional changes were needed, there would beno way for them to occur. Moreover, if onebelieves (as I do) that amendments that passthrough a functioning supermajoritarianprocess would generally be desirable, thenthe absence of an amendment process wouldprevent the enactment of desirable changes.Over time, then, a constitution without anamendment process would lose its hold onus, both morally and politically, and wouldneed to be replaced.

Now, consider a constitution with a dif-

ferent amendment provision. This provisionallows Congress to amend the constitution,subject to ratification by state legislatures orconventions, but it provides no other amend-ment method. Thus, it gives Congress a vetoon any amendments. This provision wouldalso make the constitution less reflective ofpopular views and less desirable. Given thedesire of political entities to maintain andexpand their power, Congress is unlikelyto allow the constitution to be amended tolimit its power. Moreover, because Congress

tends to adopt the perspective of the fed-eral government generally, Congress mightnot be quick to limit the power of the otherbranches of the federal government.11 Thus,if a change in values or circumstances wereto require additional limitations on Con-gress (or even on the federal government),it is unlikely that an amendment adoptingthose changes would be passed. Moreover,if Congress were to abuse its power, no con-stitutional reform would be forthcoming.Over time, then, one would expect the con-

stitution to become increasingly distortednormatively. It would fail to add the neededchecks on Congress and the federal govern-ment, but it would grow to include addi-tional limitations on the states (and perhapson the president).

Finally, consider the existing Article Vprovisions. We can see that they are largely

the same as the one described immediatelyabove, which permits only the congressionalamendment process. Given the defects in theconvention process, it is as if the conventionprocess does not exist. Thus, the same nor-

mative distortions that apply to a constitu-tion with only the congressional amendmentprocedurea bias in favor of Congress andthe national government, and against thestatesapply to the existing Constitution.12

My argument that the failure of the con-vention method has prevented amendmentsthat constrain Congress, and thereby dis-torted the Constitution, appears to be con-firmed by our constitutional history. Thedominant pattern of constitutional amend-ments reveals an amendment process that

has neither placed checks on Congress orthe federal government, nor provided pro-tections to the states. Instead, it has oftenexpanded the federal governments power ortaken actions that have been largely orthog-onal to the federal governments interests.

The constitutional amendments can beclassified into several different categories.One category involves the direct expansion offederal power, such as the Sixteenth Amend-ment (income taxation); and the Thirteenth,Fourteenth, and Fifteenth Amendments (fed-

eral enforcement of anti-slavery, civil rights,and voting-rights provisions). A second cat-egory, composed of the enormously impor-tant Fourteenth Amendment by itself, im-poses limitations only on the states. A thirdcategory of amendments operates to grantrights against both the state and federal gov-ernments, such as the Thirteenth Amend-ment (prohibiting slavery), the Fifteenth Amendment (prohibiting racial discrimina-tion in voting), the Nineteenth Amendment(prohibiting discrimination based on sex in

voting), and the Twenty-Sixth Amendment(guaranteeing the right to vote to eighteen-year-olds), but in no case did Congress granta right that it opposed at the time or one thatwould operate to harm congressional inter-ests.13 A fourth category improves the opera-tion of the federal government, such as theTwelfth Amendment (reforming presidential


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When theoriginal Bill

of Rights wasenacted, many

state legislaturesdid not fear

a nationalconvention.

elections), the Twentieth Amendment (reduc-ing the extent to which federal officers servein a lame-duck status), and the Twenty-Fifth Amendment (providing for a temporary orpermanent vacancy of the presidency). Final-

ly, the Twenty-Second Amendment imposedterm limits on the president, Congresss pri-mary competitor for power. While this provi-sion arguably limited the power of part of thefederal government, it also appears to haveenhanced Congresss power.

There are only two categories of exceptionsto this list. First, there are the amendmentsthat were originally passed by Congress asthe Bill of Rightsthe first 10 amendmentsand the Twenty-Seventh Amendment, whichCongress originally passed as part of the Bill

of Rights but was not ratified until 1992.These provisions clearly restrained Con-gresss powers, preventing Congress fromexercising authority it might otherwise havechosen to pursue. But this is the exceptionthat proves the rule.

When the original Bill of Rights was en-acted, many state legislatures did not feara national convention. Instead, they hopedthat such a convention would allow themto rewrite a Constitution that they believedwas too nationalist and that had been en-

acted without their approval. Because a na-tional convention was thus a real possibility,it was feared by the federal government andthe Federalists, and it led Congress to passthe Bill of Rights.14 Therefore, a nationalconvention was more effective in thoseunique circumstances, where state legisla-tors believed they might benefit from such aconvention, as compared to an existing Con-stitution that they sought to change.

The Eleventh Amendment also appearsto fit into this category. Ratified a bit more

than three years after the Bill of Rights, thestrong opposition to the Supreme Courtsdecision in Chisholm v. Georgia might have ledto a national convention if Congress had notpassed the amendment. While the state leg-islatures and Anti-Federalists may not havebeen as actively opposed to the Constitutionat that point, they still would not have shied

away from the possibility that a nationalconvention would be called. Moreover, un-like the Bill of Rights, the Eleventh Amend-ment only imposed a limited restraint onCongress and the federal government, and

therefore Congress would be less reluctantto adopt the amendment.The second exception is the Seventeenth

Amendment, which established the direcelection of senators. This appears to be anextraordinary change because senators werealtering their own method of election. Onemight have predicted that senators electedby state legislatures would be unwilling to vote for this change. But because of a systematic political strategy at the state level,as a practical matter a majority of the sena-

tors (and perhaps even a high supermajor-ity) were no longer really elected by statelegislatures. This political strategy arguablyimproved the amendment process and wasused as well to pass the Nineteenth Amend-ment. Unfortunately, it can only be em-ployed for a subset of amendments.15

While it is generally known that the na-tional convention process does not work, itis not usually recognized how consequentialthis failure has been. The ineffectivenessof the convention process does not simply

make it harder to amend the ConstitutionRather, the current process has distortedthe current Constitution in favor of Con-gress and against the states. Indeed, the en-tire pattern of constitutional history wouldseem to be affected.

That history has been characterizedlargely by a movement, through both con-stitutional amendments and constitutionalinterpretations, from federalism to nation-alism. The main constitutional changesthe Reconstruction Amendments, the Pro-

gressive Era Amendments, the New Dealinterpretations, and the Warren Court in-terpretationshave generally led to a morenationalist constitution. Those who sympa-thize with this development tend to view itas a necessary response to modern forcesasan appropriate reaction to moving from ahorse-and-buggy world to one of airplanes


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If constitutionalamendmentsrelating tobalancedbudgets, aline-item veto,and term limitshad beenenacted, one

would see a lessunidirectionalconstitutionalhistory.

and the Internet. Even those who are lesshappy with the trend toward nationalismoften view it as reflecting the genuine viewsof the American people.

But my argument here suggests that these

accounts offer at best a partial explanation.The movement towards nationalism appearsto be, in part, the result of a constitutionalamendment process that blocks amend-ments that would move away from national-ism, either by limiting the federal governmentor empowering the states. If constitutionalamendments relating to balanced budgets, aline-item veto, and term limits had been en-actedto mention just three examples fromrecent yearsone would see a less unidirec-tional constitutional history. The Constitu-

tion might then be seen as embracing thenational government when it was perceivedas solving problems, but imposing restraintson the national government and Congresswhen the people believed restraints were nec-essary.

There is, however, a solution to this distor-tion. An undistorted constitutional amend-ment process that conforms to the natureand structure of the Constitution is possible.Equally important, there is even a way thatthe Constitution might be amended to adopt

this new method.

The State DraftingReform Proposal

There is a way to address the defects ofthe national convention approach. The na-tion could adopt an amendment processthat avoids the problems of a runaway conventionand most of the other uncertain-tieswhile also depriving Congress of the

ability to block amendments. Under thisreformed amendment process, the state leg-islatures would draft the amendment them-selves rather than have a convention draftit. Once two-thirds of the state legislaturesapproved the same specific language foran amendment, that amendment would beformally proposed. This would trigger the

ratification stage, which would require, asit does now, three-quarters of the states toratify a constitutional amendment.

Under the simplest version of the reformproposal, each state legislature would have

the power to offer specific amendments.When the legislatures of two-thirds of thestates endorse an identical amendment, thatamendment is formally proposed and mustthen be sent by Congress to the states forratification. This arrangement would elimi-nate the main problems under the existingconvention approach. First, because Con-gresss role would be so limited, it could notsabotage the amendment process. Second,there would be no possibility of a runawayconvention, since there is no convention at

all, and a formal proposal must employ thespecific language approved by the state legis-latures. Third, because the states would haveto agree on specific language, there wouldbe no uncertainty about whether an amend-ment would actually have been proposed.

This simple version of the reform couldbe improved in three ways. First, to facilitatedeliberation and coordination, the amend-ment process should specifically authorizean advisory convention among the statesso that they could discuss, in a nonbinding

way, possible amendments to propose. Sec-ond, to prevent the small states from hav-ing excessive power relative to their popula-tions, the voting rule for ratification shouldbe changed so that each states ratificationdoes not count equally, but instead is mea-sured based on its electoral votes. Third, toensure that the ratification decision is madeby a different entity than the state legisla-tures that propose the amendment, ratifica-tion should be decided by either state con-ventions or the people of the states through

ballot measures. Lets consider each im-provement in turn.

An Advisory ConventionWhile the simple version of the reform

would have significant benefits, it wouldprovide insufficient opportunity for delib-eration and coordination among the states.


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TheConstitution

ought toauthorizeconventions

that are bothvoluntary andadvisory. Such

conventionswould not have

any binding

powers, butwould allow

states to debatethe merits

of differentproposals.

The problem is that each state legislaturewould decide on its own what amendmentto pass. The simplified procedure wouldprovide no opportunity for the states to de-bate one another as to whether an amend-

ment makes sense in general and, if so, whatparticular version of the amendment shouldbe adopted. The opportunity for a debatecould bring together diverse viewpoints,which could improve the proposal.

The simplified procedure would also pro-vide no opportunity for the states to coordi-nate their behavior so as to agree on a singleproposal. Ultimately, the states would haveto agree on a specific amendment if one is tobe proposed, and they may therefore have tocompromise with one another. If the states

operate separately, then the process may bequite inefficient and unwieldy. For example,assume that after 10 states have approved aspecific amendment, the 11th state decidesthat a different version of the amendmentwould be superior. That state must thendecide whether to propose what it deems tobe a better versionat the cost of losing the10 state approvals that have already been se-cured. Thus, the simple amendment processmay lead either to too few new suggestionsor to numerous suggestions that are hard to

get approved.To address this problem, it would be use-

ful for the states to hold a convention, but todo so in a way that avoids the pitfalls of theexisting convention method. The Constitu-tion ought to authorize conventions thatare both voluntary and advisory. A groupof states could choose to hold a conventionwhenever they deemed it advisable, but nostate would be required to attend. The con-vention would not have any binding powers.Instead, it would allow the states to debate

the merits of different proposals. It wouldalso allow them to assess the popularity ofdifferent proposals and to compromise on asingle amendment to be considered by eachstate legislature. A successful conventionwould endorse a single proposal that eachstate legislature could then approve.

This type of convention would avoid the

problems that afflict national conventionsunder the existing convention approachFirst, it could not result in a runaway convention. The convention itself would haveno power, and its endorsement therefore

could not allow a proposal to avoid statescrutiny. Proposals would result only fromthe actions of the state legislatures. Second,calling an advisory convention would notrequire the states to agree on a single sub-ject. A convention would not require specification of a subject and the delegates coulddiscuss whatever they deemed importantBut because the convention would have nopower, it would have an incentive to discusssubjects that the state legislatures were inter-ested in. Third, there would be no need for

the convention to agree on specific votingrules or voting rights. While the conventionmight want to do so, nothing significantwould turn on it since it would only be anadvisory body. The convention could reportits votes in a variety of ways, tabulating thembased on state population, state equality, orsome combination. With this informationthe state legislatures would then be in a po-sition to determine which proposals hadsignificant support, and to decide whetherto formally endorse those proposals. Finally,

there would be no problem of congressionalsabotage of the convention because Con-gress would have no authority over it.

Modifying State Voting Weights A second problem with the simple ver

sion of the state drafting approach involvesthe degree of power that it confers on thesmall states. Under the simple version, thereare two limits on a constitutional amend-ment: it must be proposed by two-thirdsof the states, and then it must be ratified

by three-quarters of the states. I will focuson the latter requirement, since it imposesthe stricter requirement. While the three-quarters supermajority rule appears to bestrict from the perspective of the numberof states, it actually appears quite lenientwhen considered from the perspective of thenumber of citizens who are represented. It


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If the smallestthree-quartersof the stateswere to support

a constitutionalamendment,those voteswould onlyrepresentapproximately39 percent of thepopulation of thUnited States.

turns out that, if the smallest three-quartersof the states were to support a constitu-tional amendment, those votes would onlyrepresent approximately 39 percent of thepopulation of the United States.16 Thus, an

amendment might be enacted that wouldhave been approved by legislatures repre-senting less than half of the country.

This appears to be a serious matter. Ifone believes, as I do, that the supermajor-ity requirements for constitutional amend-ments promote high-quality constitutionalprovisions, then constitutional provisionsenacted by representatives of only 39 per-cent of the nations population would notbe desirable. However, this aspect of the sim-ple version of the state drafting method is

not as problematic as it might at first seem.First, even focusing entirely on the represen-tation of citizens, a requirement that three-quarters of the states ratify an amendmentis a tough one to meet. While state legisla-tures that represent only 39 percent of thepeople could enact a constitutional amend-ment, that result could occur only if all ofthe smallest states voted to approve theamendment and all of the other states vot-ed against it. By contrast, to the extent thatpeoples views are not correlated with the

size of their states, the expected result underthe three-quarters supermajority rule wouldbe ratification by legislatures representingthree-quarters of the people. Thus, it is onlysome of the time that state legislatures rep-resenting three-quarters of the people wouldnot be required, and it would be extremelyunlikely ever to be 39 percent. Second, theconstitutional requirement of ratificationby three-quarters of the state legislatures re-flects a view, not much accepted today, butclearly written into the Constitution, that

the United States consists of a mixture ofequal individuals and equal states. Underthis view, it is important that three-quartersof the states are needed, even if only 39 per-cent of the population is required.

Despite these mitigating factors, anamendment procedure that allows statesrepresenting only 39 percent of the popula-

tion to amend is simply too lax. We shouldtherefore adopt an amendment procedurethat does not provide equal votes to eachstate. Given the cause of the problem, thebest procedure might be to weight the votes

of each state based on population. Thiscould be accomplished in a relatively simpleway, as each states vote could be weightedbased on its population, rather than givenequal weight, when proposing and ratifyingamendments. Each state would then havethe number of representatives it has in theHouse of Representatives. For example, ifCalifornia proposed an amendment, thatwould count for 53 votes. If North Dakotaproposed an amendment, that would countfor only 1 vote. The amendment would be

deemed proposed when it received votesequal to two-thirds of the members of theHouse of Representatives.

This proposal faces at least one majorobstacle: it is unlikely to be supported bythe small states, as it would reduce muchof their voting strength. Since part of myargument is that there is a practical and fea-sible way to reform the national conventionprocess, I take this obstacle seriously. Fortu-nately, there is a way to improve the nationalconvention process that would still allow

the reform to pass. We need a compromisebetween the small and large states.

Instead of allocating votes to each statebased on its population, we could allocatevotes based on the number of electoral votes astate has. Because electoral votes are the sumof the number of representatives and sena-tors for each state, they represent a compro-mise between representation based on pop-ulation and representation based on equalstates. A large state like California would beentitled to 55 votes, based on 53 representa-

tives and 2 senators, while a small state likeNorth Dakota would be entitled to 3 votes,based on 1 representative and 2 senators.

It is true that the small states would lose voting power under this proposal as com-pared to the equal-state voting rule, but thatwould happen under any compromiseandthe Electoral College compromise is a famil-


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Given moderncommunication

methods, itseems reasonable

to employ adirect vote of

the people forthe ratification

decisions that the

state conventionsalso make.

iar one from the Constitution. More impor-tantly, the small states might believe that thecompromise was biased against their inter-ests. Going from a voting rule in which Cali-fornia and North Dakota receive equal votes

to one in which they receive 55 votes and 3votes, respectively, might not seem like a faircompromise, even though North Dakotagets more votes than its population warrants.

Two responses can be made to North Da-kota. First, to sweeten the deal for the small-er states, we should use the Electoral Collegerule for only one of the two constitutionalamendment votes. I recommend using theElectoral College measure for the ratifica-tion vote, while using the equal-state votingrule for the proposal vote. Second, the small

states would gain from a deal that allowedthe state drafting amendment to be enacted.Under the existing national convention ap-proach, the states have equal rights to seeka convention, but since the process is neverused, their equal power has little value. Un-der the reformed process, with votes basedin part on the Electoral College, the smallstates would have less formal voting power,but their votes would be more valuable be-cause the voting process would be used moreoften. While equal voting power and state

drafting of amendments might be preferredby the small states, the large states would beunlikely to agree to this proposal and mighthold out for additional representation. Inthe end, the Electoral College weighting ofvotes for ratification would seem to be a fairand acceptable compromise.

This compromise would also respond tothe concern that states representing 39 per-cent of the population could ratify a con-stitutional amendment, since this wouldno longer be the case. Under the Electoral

College weighting, the three-quarter su-permajority of electoral votes would meanthat states representing at a minimum of 74percent of the people would have to supportan amendment for it to passvirtually thesame percentage of popular support as thepercentage of Electoral College votes. Thus,the state drafting rule would largely address

the distortions created by using equal statesrather than populations to propose and rat-ify amendments.

Modifying How States Vote. We nowcome to the last necessary modification of

the simple version of the state drafting pro-posal: changing how the states vote. Underthe simple version, the state legislaturesfirst propose the amendment and then thestate legislatures or state conventions ratifythe amendment. This arrangement createsa problem. Allowing the state legislaturesto both propose and ratify the amendmentwould confer too much power on a single en-tity. That entity could then pursue its institu-tional interests without sufficient constraint

This problem, however, can be corrected

by shifting ratification power from the statelegislatures to another entity. There are atleast two entities that could do the job. Firstare the state conventions, which are now per-mitted to ratify constitutional amendmentsunder the existing Constitution. Althoughthey have only been used for one amendment(as well as for ratifying the original Constitu-tion), they could certainly be employed forconstitutional amendments in the futureThey would provide an independent sourceof authority, and therefore would operate

as a check on state legislatures that are at-tempting to enhance or defend their ownpowers. Yet, state conventions have not beenused in many years and therefore might bethought of as an outdated or unfamiliar in-stitution. Instead, we might employ a moremodern institution to speak for the peoplethe ballot measure. A proposed constitution-al amendment might be ratified by a simplevote of the people, as are state constitutionalamendments and laws in many of the statesWhile the ballot measure would certainly be

an innovation for the Constitution, its wideuse by the states makes it a familiar and test-ed device. Given modern communicationmethods, it seems reasonable to employ adirect vote of the people for the ratificationdecisions that the state conventionswhichwere historically said to act in the name ofthe peoplealso make.


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While thenationalconventionmethod is

defective, itmay be possibleto use it onceto adopt astate draftingamendment.

It also seems likely that the state legisla-tures would be willing to propose such anamendment method. While they might pre-fer having greater power, they would likelyunderstand the importance of having two

separate entities involved in the process.Moreover, if the reform amendment is to bepassed, it would need to obtain the supportof a national convention, and that conven-tion might be skeptical about approving anamendment that seemed to be a state legis-lative power grab. Further, the state legisla-tures would also have more power under thereformed amendment method than underthe national convention method. Under thereformed amendment method, the state leg-islatures would not only be able to use an ef-

fective amendment method, but would alsonot have to secure the approval of the na-tional convention to enact an amendment.

The reformed amendment process out-lined here would resurrect the Constitu-tions original design by establishing anamendment method that would both func-tion to allow amendments to pass andwould not require the approval of Congress.The reformed process would work becauseit would increase the benefits and decreasethe costs to state legislators of proposing

an amendment. Most importantly, the costwould decrease because the process wouldprevent a runaway convention and the re-sulting possibility that a disliked constitu-tional amendment would be enacted. Ofcourse, as with the functioning congres-sional amendment process, one would notexpect many amendments to be proposedunder this process. Most state legislatorsare unlikely to believe that the Constitutionrequires many amendments, and it is quitedifficult to secure the strict supermajority of

states necessary to enact one. However, thisreform would provide an alternative amend-ment process that would not go throughCongressan alternative path that was in-tended by the Founders. It would therebycounter the bias toward Congress and thenational government that now marks theconstitutional status quo.

Realism of the Reform

The state drafting procedure might seemunlikely to be adopted under either the con-gressional proposal method or the national

convention method. Congress is extremelyunlikely to propose a state drafting pro-cedure that would deprive it of the effec-tive veto over the amendment process thatit currently enjoys. This leaves the nationalconvention method. But that method mightseem unlikely to produce any amendmentsbecause of the problems we have alreadydiscussedespecially the coordination prob-lems and the fear of a runaway convention.

There is a great irony here, in that the veryreasons that make the national convention

method so important and so problematicalso prevent its reform. But this irony turnsout be only apparent. While the nationalconvention method is defective, it may bepossible, through significant effort, to use itonce to adopt a state drafting amendment.This old, broken car may still be capable ofone last trip to the dealership to buy a re-placement.

It is true that state legislators are ordi-narily wary of applying for a national con-vention. But by anticipating the difficulties

and taking extraordinary actions to preventthem, the state legislatures might be able tosignificantly reduce the coordination prob-lems and the possibility of a runaway con-vention. Knowing that these problems couldbe addressed, the state legislatures might bewilling to apply for a convention to enact astate drafting amendment that would sig-nificantly enhance their own authority inthe future.

The state legislatures could address thesedifficulties by combining elements of the

state drafting procedure with the existingnational convention approach. First, thestates should hold a voluntary conventionin order to agree on a single specific amend-ment and a strategy for adopting it. By pro-posing a single specifically worded amend-ment, the states would significantly reducethe coordination problems among the states


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14

The statelegislatures

that apply for aconvention to

pass identicalamendments

should pledge tovote against anynonconforming

amendment.

and between the states and Congress. Withtwo-thirds of the state legislatures callingfor the exact same amendment, Congresswould have no discretion to argue that theapplications were not for the same subject.

Second, the states could take a varietyof actions that would significantly reducethe possibility of a runaway convention.Most importantly, they could attempt topromote a legal or moral norm against arunaway convention by passing variousmeasures deeming such conventions illegalor improper. For example, the two-thirdsof the state legislatures that apply for aconvention to pass identical amendmentsshould also announce in their applicationsthat they believe a runaway convention is

both illegal and improper, and that theypledge to vote against any nonconformingamendment.

Moreover, state legislators should takestrong actions to promote delegates to theconvention who are likely to support thestate drafting amendment and unlikely tosupport a runaway convention. One effec-tive way of promoting such delegates wouldbe to have prospective delegates take pledg-es to oppose nonconforming amendments.The delegates to the convention are likely

to be selected either by the state legislatureor by a popular election. If the state legisla-ture selects them, it should insist that thecandidates it selects take a pledge to opposea runaway convention. If the delegates arechosen through a state election, the legisla-tors should strongly campaign only for thecandidates who pledge to vote against a run-away convention.

The legislators should also insist that thedelegates agree not to sign or support anyrules at the convention that would prevent

them from disclosing a decision by the con-vention to debate a nonconforming amend-ment. In that way, these delegates can revealthat the convention is behaving improperlyso that the nation can apply political pres-sure to restrain it.

Finally, the state legislators should at-tempt to oppose the ratification of any

nonconforming amendment. If Congresschooses the state legislatures to make theratification decision, then they can certainlyvote against ratification. If Congress choosesstate conventions to make the decision, the

state legislatures should campaign againstratification. Moreover, the state legislaturesmight even threaten to delay or to refuse topass legislation scheduling elections for theratification convention on the grounds thatthe proposed amendment was illegal.

These actions by the state legislatureswould significantly decrease the possibilitythat a nonconforming amendment wouldbe passed. This, in turn, should make it morelikely for state legislatures to be willing tosubmit applications for the state drafting

amendment. Of course, the state draftingamendment, like any proposed amendmentwould only have a good chance of passingif it became popular. But the strategies out-lined here suggest that, if the amendmentdoes become popular, there might be a wayof enacting it.

Conclusion

I have argued that the constitutional

amendment procedure of Article V is defec-tivenot because the supermajority require-ments it imposes are too strict, but insteadbecause the national convention amendmentmethod does not work. Because no amend-ment can be enacted without Congresssapproval, limitations on the federal govern-ment that Congress opposes are virtuallyimpossible to pass. This defect may have hadenormous consequences in recent decadespossibly preventing the enactment of severalconstitutional amendments that would have

constrained Congress, such as amendmentsestablishing a balanced budget limitation, aline-item veto, or congressional term limitsThus, the increasingly nationalist characterof our constitutional charter may not be theresult of modern values or circumstances,but an artifact of a distorted amendmentprocedure.


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Happily, reforms of the national conven-tion amendment method exist that wouldaddress this defect, including a procedurethat would allow two-thirds of the state leg-islatures to propose an amendment. That

proposed amendment would then be subjectto ratification by the states, acting throughstate conventions or state ballot measures.It may even be possible to place this newstate drafting procedure in the Constitu-tion. While the national convention amend-ment method is broken, a strategy exists thatmight allow this method to be used just onetime to pass the state drafting procedure.Such a return of power to the states wouldmilitate against our overly centralized gov-ernment by helping to restore the federalist

character of our Constitution.

Notes1. Sanford Levinson, Our Undemocratic Constitu-tion (New York: Oxford University Press, 2006),pp. 16064.

2. John O. McGinnis and Michael B. Rappa-port, Majority and Supermajority Rule: Three

Views of the Capitol, Texas Law Review 85 (2007):1119.

3. Article VII of the Constitution, which provided that the Constitution took effect when 9of the 13 states ratified it, used state conventionsrather than the state legislatures, in part becauseit was believed that the state legislatures had in-terests that would lead them to oppose the newConstitution.

4. James Madison, The Debates in the FederalConvention of 1787, ed. Gaillard Hunt and JamesBrown Scott (New York: Oxford University Press,1920), pp. 8990.

5. James Madison, Federalist No. 43 in theFederalist Papers, ed. Clinton Rossiter (New York:

New American Library, 1961), pp. 24647.

6. No amendment has ever been passed underthe national convention method, nor has a na-tional convention ever been called. See MichaelStokes Paulsen, A General Theory of Article V:The Constitutional Lessons of the Twenty-Sev-enth Amendment, Yale Law Journal 103 (1993):734. Only once, for the Twenty-First Amendment,has Congress employed state conventions, ratherthan state legislatures, to ratify an amendment.

See Russell L. Caplan, Constitutional Brinksmanship: Amending the Constitution by National Convention(New York: Oxford University Press, 1988), p. 126.

7. See John O. McGinnis and Michael B. Rap-paport, Originalism and the Good Constitu-tion, Georgetown Law Journal98 (2010): 173637,

1753.

8. That the fear of a runaway convention is realis suggested by the fact that concern about it hasso often been mentioned. Many of those express-ing these concerns have used it to argue againstusing the national convention procedure. See Ca-plan, p. vii, quoting Arthur Goldberg, The Pro-posed Constitutional Convention,Hastings Consti-tutional Law Quarterly 11 (1983): There is nothingin Article V that prevents a convention from mak-ing wholesale changes to our Constitution andBill of Rights.; Caplan, p. viii quoting press re-lease, Henry J. Reske, United Press Intl, SpecialConstitution Package: Hi-tech Constitution?(May 24, 1987), expressing Justice Brennans fearof the trauma of redoing the Constitution andcalling a constitutional convention the mostawful thing in the world; Caplan, p. 81, quoting125 Cong. Rec. 3159 (1979), recording SenatorBarry Goldwater as stating that in the event of aconvention, every group in this country . . . is go-ing to get its two bits in and we are going to windup with a Constitution that will be so far differ-ent from the one we have lived under for 200 yearsthat I doubt that the Republic could continue;Caplan, pp. 8182, quoting Edward Walsh, Presi-dent Denounces Political Gimmickry of Drive toBalance Budget by Constitution, Washington Post,

March 28, 1979, A10, relating President Carterscorrespondence with the Speaker of the OhioHouse of Representatives, in which he expressedhis opinion that a convention is a radical andunprecedented action that might do serious, ir-revocable damage to the Constitution; Caplan, p.84, quoting Richard L. Madden, A Balanced U.S.Budget Debated in Connecticut,New York Times,March 19, 1985, B4, recounting Thomas I. Emer-sons statement that the uncertainty of a constitu-tional convention could result in a constitutionalcrisis that could tear the country apart; Caplan,p. 85, quoting MacNeil/Lehrer NewsHour(PBS,March 24, 1986, transcript #2736) stating Sena-tor Paul Simons opinion that, with regard to a

convention to propose a balanced budget amend-ment, number one, we dont know what kind ofa budget amendment they might draft. Second,that constitutional convention can . . . modify theBill of Rights, they can put an abortion amend-ment in the Constitution, they can [raise] all kindsof havoc.; Caplan, p. 85, quoting Public Papersof the Presidents of the United States: Ronald Reagan,1982 (Washington: Government Printing Office,1982) (interview with reporters from the Los An-


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16

geles Times, January 20, 1982, http://www.reagan.utexas.edu/archives/speeches/1982/12082e.htm),reporting President Reagans stance that a conven-tion for a balanced budget amendment was a lastresort, because then once its open, they could takeup any number of things; see also David E. Kyvig,

Explicit and Authentic Acts: Amending the U.S. Consti-

tution, 17761995 (Lawrence, KS: University Pressof Kansas, 1996), p. 433, noting that PresidentJimmy Carter called a convention extremely dan-gerous because it is completely uncontrollable;Laurence H. Tribe, Issues Raised by RequestingCongress to Call a Constitutional Convention toPropose a Balanced Budget Amendment, Pacific

Law Journal10 (1979): 628, calling a convention toconsider a balanced budget amendment needlessand perilous . . . likely to generate uncertaintieswhere confidence is indispensible . . . to invite divi-sion and confrontation where unity and coopera-tion are critical . . . to thwart rather than vindicatethe will of the American people and damage ratherthan mend the Constitution; Phyllis Schlafly,An Address to the American Bar Associations Bi-centennial Showcase Program (August 9, 1987),reprinted in Combating Chicanery About theConstitution, The Phyllis Schlafly Report 21, no. 2(September 1987), http://www.eagleforum.org/psr

/1987/sept87/.

9. It might be argued that the national convention method causes constitutional changeby threatening Congress, which in turn passesdesired amendments to be sent to the states. Ibelieve history does not support this claim. SeeMichael B. Rappaport, Reforming Article V: TheProblems Created by the National Convention

Method and How to Fix Them, Virginia Law Re-view 96 (2010): 153537.

10. Some of the delegates at Philadelphia ap-peared to believe that no amendment provisionwas necessary. See note 1, The Records of the FederalConvention of 1787, at p. 202.

11. One possible exception to Congresss gen-eral preference for the federal government is thatit will sometimes favor placing limits on its prin-cipal competitor, the president, if those limitsenhance its own power. See U.S. Constitution,Twenty-Second Amendment (placing term limitson the president).

12. The one exception to this claim is that thenational convention process would be avail-able if matters ever turned catastrophic. At thatpoint, the state legislatures might be willing torisk a runaway convention and the other coststo address genuinely overriding problems. Butabsent this extraordinary situation, the nationalconvention process would not be employed andthe Constitution would exhibit serious norma-

tive problems.

13. Actually, the Fifteenth, Nineteenth, andTwenty-Sixth Amendments did not really placelimits on the federal government. While they didnot forbid government from restricting the rightto vote, the previous power to impose these re-

strictions was located mainly in the states. See, forexample, U.S. Constitution, art. I, 2, cl. 1, [T]he Electors in each State [for the House of Repre-sentatives] shall have the Qualifications requisitefor Electors of the most numerous Branch of theState Legislature.

14. Donald Boudreaux and A. C. Pritchard offeran alternative explanation for the passage of theBill of Rights. They argue that the fact that thefederal government was in its infancy at the timeof the Bills passage prevented Congress from ex-ercising sufficient power to block its enactmentDonald J. Boudreaux and A. C. Pritchard, Re-writing the Constitution: An Economic Analy-

sis of the Constitutional Amendment Process, Fordham Law Review 62 (1993): 13240. Whilethe federal governments undeveloped state nodoubt helped passage of the Bill, it is unlikelyto have made more than a minor contribution.It was the willingness of the state legislatures tocall a convention that was the key factor. Evenif the federal government had been strong, thestate legislatures would have been very likely tohave called for a convention to enact the Bill ifthe Congress had not done so. To prevent theconvention from being called, Congress wouldstill have had an incentive to enact the Bill, de-spite the existence of a strong federal govern-

ment. Moreover, if the state legislatures had notdesired to call a wide-ranging convention, theBill of Rights might not have been enacted, evenwithout a strong federal government. As it was,the Congress seemed ready not to enact a Bill ofRights until James Madison took the initiativeand proposed one to the House. Without thecredible threat of a second convention, it seemsunlikely that the Bill would have secured the req-uisite two-thirds support in both houses of Con-gress.

15. Although this mechanism was being usedmost recently to promote a congressional term-limits amendment, the Supreme Court termi-

nated this effort when it declared, in a dubiousdecision, state-imposed congressional term lim-its unconstitutional. See Lynn A. Baker, Theythe People: A Comment on U.S. Term Limits, Inc. v.Thornton,Arizona Law Review 38 (1996): 86263.

16. Figures compiled based on U.S. CensusBureau statistics. See also Charles L. Black, Jr.,Amending the Constitution: A Letter to a Con-gressman, Yale Law Journal82 (1972): 198.


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