The proposed lawsuit is based on the fact that there are hundreds of outstanding calls for an amending convention, far more than the 34 constituting two thirds of our 50 states. The complication is that most of these applications specify a particular subject for the amendment(s) to be proposed at the convention. Can a call for a convention to propose an amendment mandating a balanced federal budget be aggregated with one to allow state legislatures to be apportioned on a basis other than gross population (the two most common topics of calls in the last half century)? The lawsuit will argue that a call for a convention is a call for a convention, and the subject matter designations in the state applications should be ignored.

This would not be the first time this argument has been tried. In 2000 and 2004 Article V activist Bill Walker filed similar lawsuits, which were all dismissed by the courts on the grounds that the determination was to be made solely by the Congress. It is not clear how the new lawsuit would try to work around these precedents. One strategy may be that the promoters of the new lawsuit are looking to have it brought by a state, which jurisdictionally would have a stronger standing than Bill Walker as a private citizen.

Regardless of the fate of such a new lawsuit to force Congress to call a convention under Article V, it raises again the issue that the Framers clearly intended that the states as well as the federal Congress be empowered to initiate amendments to the Constitution, yet the procedures of Article V have proven inadequate to realize that intent. Even if an Article V convention were called, the absence of any agreed procedures, or agreement on how to agree, would mire the effort in irresoluble risks and uncertainties.

The point of Article V was that the Framers recognized that there would be a need to revise and update the Constitution as time and experience showed. Shouldn’t we apply the same logic to Article V itself? The half of Article V intended to enable states to initiate amendments has proved completely ineffective. Rather than expend endless resources on long-shot lawsuits and a risky and uncertain convention concept which is outside the American people’s experience, why not use Article V to reform Article V itself? The text of such a reformed Article V can be found here on this website. This “Amendment Amendment” provides clear unambiguous procedures familiar to all Americans to enable them, acting through their states, to be the final arbiters of their Constitution’s meaning.

1)    Labels can be important, especially when trying to communicate a sometimes subtle argument to the public.  The term “originalism” is suitable, but what is it contesting?  “Living constitutionalism” or “evolving constitution” are awkward, unclear and even misleading.  I propose that the debate properly should be framed in terms of its fundamental issue, which is how the law is changed, and by who(m)?  To change a law (or the Constitution) is to amend it.  When courts change the law as enacted, they are amending it.  For this I believe the correct term should be “judicial amendment,” and that is how I propose we should speak of what “living constitutionalists” are advocating.  And thus its opposite, as advocated by originalists, is democratic amendment.  By framing the fundamental issue as judicial amendment vs. democratic amendment, originalists can make clear that they are defending democratic government, not the dead hand of history as portrayed so often by their opponents.

2)    However, the argument that the judiciary is exceeding its proper democratic bounds runs into a major difficulty with regard to constitutional law.  Unlike regular laws, which can be readily amended by current legislatures, the Constitution can only be democratically changed by the lugubrious procedures of Article V.  Even while accepting the concept that constitutional change should be more difficult than regular legislation, the simple reality is that Article V is now moribund.  This leaves originalists with no response when advocates of judicial amendment argue that there is no realistic way to update the Constitution unless the judiciary acts.  All of the Framers expected that such updates would be needed – they just did not foresee that the procedures they put in place would become unworkable in a vast nation with 50 disparate states.

Therefore, the article argues that originalists need to actively advocate reform of Article V.  I propose such a reform briefly in the article.  The full text of my proposal is at www.amendmentamendment.com.  Regardless of the specifics, originalism is missing half of its force if it ignores the need to reform an amendment process that makes the U.S. Constitution one of the most difficult in the world to amend.

In addition, one should note that such an effort to return ultimate control of our Constitution to democratic rather than judicial processes, could make its advocates’ other arguments better received in our current populist political climate.

To a fair amount of publicity, Texas Governor Greg Abbott has just released a comprehensive proposal to amend the Constitution to restrict the power of the federal government, a power which in the last hundred years has grown far beyond its original constitutional bounds. The idea that only the power of constitutional amendment can permanently constrain the federal leviathan is not new. Mark Levin argued the same in his 2013 bestseller The Liberty Amendments, and many conservatives have been trying to organize such a campaign for years. However, all of these efforts suffer from a fatal strategic flaw, which makes it politically impossible to even launch such a campaign. This is that they all rely on the never used provision of the Constitution’s Article Five authorizing a convention of states to initiate constitutional amendments. Unfortunately, no such convention has ever been held in our history, nor is one ever likely to occur. Fortunately, there is an alternative way to harness the amendment power, an approach which is also politically feasible even in our current divided political environment. This is to revise Article Five to permit the states to amend the Constitution without having to go through the archaic and unworkable mechanism of a convention.

First, let’s see why the convention of states will not work. It will take 34 states to call a convention. Superficially the situation looks promising, with the highest number of Republican state legislators since 1920 controlling 67 of the 99 state legislative chambers. However, even with the largest number of Republican state legislators in almost a century, the convention drive still comes up short. Republicans control the governor’s office and both houses of the state legislature in 25 states (including Nebraska, where the unicameral legislature is technically nonpartisan but de facto Republican). Democrats only have state-wide control in seven states and there are 19 states where state government is split. Looking only at state legislatures, Republicans control both houses in 31 states (including Nebraska), Democrats control both houses in only 11 states, and eight states have a split in control between the two state legislative houses. However, the 31 states where Republicans control both houses of the state legislature, only three short of the 34 states necessary to call a convention, becomes a far larger shortfall when one considers several factors:

Governors may have a veto. In a 1798 case the Supreme Court ruled that the president did not have to sign a constitutional amendment for it to become effective. However, there has never been a ruling whether a state’s governor would have to sign a state legislature’s call for an Article V convention (or have the right to veto it), and prominent constitutional scholars have argued that gubernatorial approval would be required for a convention call. If that is the case, then the 31 state number falls down to the 25 states with complete GOP control. One can argue the point either way, but it is almost certain that there would be long drawn-out lawsuits to decide the question in every state where a Republican legislature issued a convention call which was opposed by a Democrat governor.

Not all Republicans will support a convention call. Even in the conservative movement there is substantial opposition to the idea of a convention, led by the estimable Phyllis Schlafly. Leading conservative jurists like Justice Antonin Scalia have also expressed reservations about an Article Five convention. Further, while no one would question Ms. Schlafly or Justice Scalia’s credentials as constitutional conservatives, sadly not all Republicans are true constitutional conservatives. Whether because of principled concerns like those of Phyllis Schlafly or Justice Scalia, or RINO disinterest, one cannot assume that all of the Republican state legislatures will bestir themselves to join in a call for a never before used Article Five convention. And the 31 or 25 state number declines further.

No Democrats will support a convention call. If the 34 state threshold cannot be met even with historically high Republican control at the state level, the only solution is to get some Democratic support. However, if the purpose of the convention is to limit the power of the federal government, what contemporary Democrat is going to support that? Democrats might support an open-ended convention free to also propose amendments increasing the power of the federal government, but then any convention would degenerate into a media circus dominated by leftist law professors, wasting the efforts of constitutional conservatives to bring it about.

There is an alternative — direct state action without a convention. So, do we just give up hope on using the amendment power to push the federal government back into its original constitutional constraints, constraints which an imperial federal judiciary has been ripping apart for 70 years? Clearly the Framers contemplated that amendment of the Constitution would be necessary and appropriate. That is why they included Article Five. And equally clear is that they intended that the states should be able to initiate amendment proposals just like Congress. Nonetheless, to date all 27 amendments have been initiated in Congress rather than the states.

The problem is the convention itself. Hastily enacted on the second to last day of the 1787 constitutional convention over James Madison’s strong objections, this archaic mechanism was perhaps a sensible way for the states to get together in an era of horse and sail, but is completely outmoded in today’s world. And, even if the impossible 34 state threshold for calling a convention were met, it would be a procedural nightmare tied up in litigation for years (see here). For example, if it tries to follow precedent and have one vote for each state, it is certain to be challenged under the Supreme Court’s “one-person, one-vote” cases. This issue would go to the Supreme Court, which would bolix the start of the convention for years. (How can you have a convention without knowing how the votes are going to be counted?)

The solution is to eliminate the requirement that the states act through a convention to initiate amendment proposals. Mark Levin proposes such a step in chapter 9 of his book The Liberty Amendments. My similar but slightly more complete proposal, the Amendment Amendment, can be found here. Under the Amendment Amendment, any five states could launch an amendment proposal without having to call a constitutional convention. With no convention, there would no chance of a “runaway” convention so feared by conservative convention opponents. And, most importantly, there would be a path for constitutional conservatives to enact amendments restoring the original constitutional limits on federal power without having to go through Congress at all.

Of course, either Levin’s proposal or the Amendment Amendment would have to be enacted the old fashioned way. How does one get two-thirds of each house of Congress to approve a proposal which returns control of the Constitution to the people? And, as with a drive for a convention, even if all the Republicans in Congress supported it, Democrat votes would still be needed. Here is where Levin’s proposal or the Amendment Amendment are superior to the convention approach. They are content-neutral. Liberals could use a reformed amendment process to launch their own proposals. This issue is particularly lively on the Left these days because of the desire to reverse the Citizens United decision.

While constitutional conservatives (and most of those 67 Republican state legislatures) would oppose any effort to gut the First Amendment, a temporary coalition with liberals to force Congress to enact a content-neutral proposal like Levin’s or the Amendment Amendment could work. As never before, there is intense interest in the subject across the political spectrum.  With a public outcry from both the left and the right, members of Congress would vote for it just to shut up the voters. Congress would know that this opens up an end run around it. However, members of Congress have short time horizons, and would vote for amendment reform because it is only procedural, and would not commit them to any particular amendment. Do something popular that actually doesn’t do anything right away? That’s right up Congress’ alley! Since it would give states legislatures a significant new role, ratification by the states would follow quickly.

Then we could get right to the business of enacting needed constitutional amendments. All the work and resources devoted to calling a convention to no avail could then be directed instead to actually passing amendments, such as proposed by Governor Abbott. By offering a real chance of enacting amendments, this reform would galvanize the grassroots, and could restore our republic in a time frame which would probably find an Article Five convention drive still looking for 34 states, or tied up in the courts.

Finally, this is not an exclusive “either-one-or-the-other” proposition. Constitutional conservatives can push for both an Article Five convention and Article Five reform simultaneously. In fact, given the daunting arithmetic facing a convention call, it would be strategically wise to pursue an alternative in parallel with the elusive quest for 34 states to call a convention. We are all suffering under a massive centralized leviathan which has utterly betrayed the Framers’ original vision of a limited federal republic. The Framers created the amendment power in part to give the people a means to prevent that. We should use every tool possible as soon as possible to carry out that mission.

Conservative criticism of the idea is largely based on concerns that any such convention will fall under the influence of leftist legislators and law professors, and propose amendments which would increase rather than decrease the power of the federal government.  While such amendments could still be stopped by defeating them in 13 states, they would waste all of the effort and resources invested in such a convention.   However, an even more certain problem with a state-called convention would be the one Madison pointed out at the 1787 convention – Article V’s lack of procedures, or of any method to determine procedures, a problem which would make such a convention unworkable.  These procedural problems are detailed in an article I have posted online under the title, To Originate The Amendment of Errors: Reforming Article V to Facilitate State and Popular Engagement in Constitutional Amendment.

To give one example, how will votes be allocated at the convention?  The default position would be state equality as at the 1787 convention, but many will object to that as a violation of the Supreme Court’s one-person, one-vote cases, and demand some allocation of votes proportional to population.  Both would have colorable arguments, and would make it certain that any state-called convention would be tied up in litigation for years as this and other procedural issues made their way up to the Supreme Court.  If you can not decide how to count votes, you can not do anything at a convention.

The solution, as elaborated in To Originate The Amendment of Errors,  my short book Are We The People? (described here), and on this blog, is to first adopt one of Levin’s and others’ suggestion to amend Article V to allow states to initiate amendment proposals without having to go through the untried, unworkable and archaic mechanism of a convention.  My proposal for such an Amendment Amendment would permit any five states to launch an amendment proposal without all the labor and risk of calling a convention.  As there would be no convention, there would be no chance for a “runaway” convention.  Instead, everyone would know exactly what they are voting on upfront.  In this way, grassroots groups could invest their resources directly in promoting their amendment proposal on the state level without ever having to go to Congress or incur the expense and risk of a national convention.