Today—when our Constitution, the rule of law, the common welfare, and even truth itself is under constant attack—our instinct is to protect and preserve this nearly 250-year experiment in democracy, particularly our Constitution. Our Constitution was the first of its kind—a blueprint for rule by the “people” and not a king. The founders also anticipated the corrupting influence of power, building in a system of checks and balances. And while there is much we should want to preserve, we must also be mindful of where we have fallen short of the ideals contained in our founding documents.
“Baked into” a document that declared its commitment to freedom, equality and “power of the people” was the glaring inconsistency that not all people were recognized as equal. Moreover, there was a concerted effort to protect the rights of property—rights which hypocritically included the ownership of other human beings. This original flaw has haunted our nation until this time, resulting in a system that—for all its rhetoric about equality and democracy—serves the wealthy and privileged at the expense of the welfare of the People. This same tension—between the demands of the privileged and powerful versus those of the People—continues to affect Constitutional jurisprudence today.
The urge to preserve comes from both the right and the left: Conservatives claim to revere the Constitution as “originalists,” while progressive groups like Common Cause have thwarted almost 150 calls for an Article V Convention from the states to amend it. Notwithstanding some conservative arguments that the original framers intended for the Constitution to be immutable for all time, the founders actually built in a procedure to change it. This is the amendment process, which is found in Article V. This process is designed to make change difficult—avoiding wild swings with every shift in direction of political winds—but not insurmountable. Indeed, our Constitution has been amended twenty-seven times, with the 21st Amendment actually repealing the 18th Amendment prohibiting the possession, importation or transportation of “intoxicating liquors.” Repeal of a prior Amendment has to pass the same stringent tests as adding it.
The Provisions of Article V
Article V provides two paths to Constitutional amendment. The first goes through Congress (the Congressional path), and it requires a two-thirds majority vote of both Houses. If the proposed amendment passes this threshold, it must then be ratified by the legislatures of three fourths of the states. The second path goes through the states: Because our nation was cobbled together from a loose federation of previously independent states, the founders provided another way to amend the Constitution, allowing the states to bypass a potentially recalcitrant Congress. In this method, two-thirds of state legislatures (currently 34 states) could also call a “Convention for proposing Amendments.” Any Amendments thus proposed also had to be ratified by three fourths (38) of the states, or “by Conventions in three-fourths thereof.”
Historically, the only Constitutional Convention that has ever been held was when the original Constitution was drafted and presented to the original 13 states. After uniting to defeat the King of England, the former colonies (now states) were more interested in local affairs, being loosely committed to each other by the Articles of Confederation. However, the newly independent states discovered that there were logistical gaps in how to regulate interstate commerce and transportation, international trade, and multiple different currencies, as well as how to raise funds to pay off war debts.
Some historians believe that the driving impetus for the first Constitutional Convention was Shay’s Rebellion in Massachusetts—a group of indebted farmers who took possession of courthouses when banks attempted to foreclose on their farms. Because the Massachusetts state militia was unable to quell the rebellion, “men of property” (bankers and large landowners) wanted to create a militarized force large enough to keep a disgruntled rabble in its place. The way to do this was to create a stronger organized entity committed to preserving the rights of property.
Congress authorized the Convention on the premise that its purpose was to make suggestions for changes to the Articles of Confederation. Twelve of the thirteen states sent Delegates to the Convention (which was held in Philadelphia from May to September in 1787), with the exception of Rhode Island. Rhode Island was the last state to ratify the new Constitution. NO Constitutional Convention has ever been called since, as all twenty-seven Amendments have been proposed by Congress. Currently, 38 states are required to ratify any new Amendment, regardless of which method it is proposed.
As we know from history, the Delegates to the 1787 Convention completely disregarded the recommendations from Congress that their purpose was solely to amend the Articles of Confederation. Indeed, the Convention itself was conducted largely in secret, where the Delegates even sealed the doors and windows of Independence Hall to ensure that “no outside public pressure” would interfere with the debates.
What Powers Does Congress Have?
What are Congress’ powers with respect to setting the rules for a Convention called by the states? Under the express terms of Article V, Congress “shall” call a convention when it has received the required number of applications (34) from the states. While Congress has the power to call the convention, once the convention is convened, the Delegates are free to make whatever rules they want. There is debate about whether Congress has any further authority once a Convention has been called. There is also disagreement about whether states have the power to limit the scope of an Article V Convention (e.g., to a particular subject matter). Additionally, there remains a legitimate concern about whether a Convention could become “runaway” and exceed its original scope—as the first one did.
The 27th Amendment was proposed in 1789, but not ratified until 1992. The 27th Amendment prohibits Congress from raising its own salaries until after the next election, to ensure that pay raises have been subject to some form of voter approval. This precedent suggests that there are no time limits for ratification, although the admission of additional states into the Union in the interim would now require a higher threshold of ratifying votes. For example, the number of states needed for ratification could increase to 39 if both Puerto Rico and Washington DC became states.
The Equal Rights Amendment—a guarantee of equal legal rights regardless of sex—was proposed in 1923 but did not pass in Congress until 1972. In 2020, Virginia became the 38th state to ratify the ERA. However, the ERA would not become law due to the fact that Congress had imposed a ratification deadline of 1982, and so the National Archives declined to publish it. Whether Congress’ imposition of a ratification deadline is itself “Constitutional” is an as-yet-unanswered legal question.
What Types of Amendments Have Been Proposed by the States?
Since the first Convention that created our Constitution, no Article V Convention has ever been called, as all 27 Amendments were added via the Congressional path. However, many attempts have been made to propose various amendments via the route of a Convention. One estimate is that there have been over 700 applications, with every state except Hawaii submitting an application at one time or another.
Although we have never reached the two-thirds threshold to call an Article V Convention, there are a few issues which have seen significant activity.
In 1949, following the end of World War II, six states (CA, CT, FL, ME, NJ, NC) proposed an Amendment to “enable the participation of the United States in a world federal government.” A concern for maintaining peaceful international relations had already led to the creation of the United Nations in 1945. Conversely, this also fueled previously circulating conspiracy theories among right-wing populists about a “New World Order” or “one-world government” run by global elites.
Between 1975 and 1979, thirty states petitioned for a balanced budget amendment in response to increasing federal deficits. By 1983, the number of applications had reached 32, which came close, but did not rise to the requisite two-thirds to call a Convention. But this movement has never really died, and continues to see periodic activity.
More recently, at least 22 states and more than 700 cities and municipalities have been active in proposing an amendment to overturn the disastrous Citizens United decision in 2011. One resolution reads, “Corporations are not people. They have none of the Constitutional rights of human beings. Corporations are not allowed to give money to any politician, directly or indirectly. No politician can raise over $100 from any person or entity. All elections must be publicly financed.”
The Perils
The main problem with an Article V Convention is that there are very few rules about how this should happen, as well as practically zero precedent. At the time Article V was drafted, there were a number of Delegates who desired that the previously independent states be allowed an end run around Congress if such became necessary. One unanswered question is whether a Convention would (or could) be limited to a single issue, or could Delegates propose anything and everything without prior notice. Another unanswered question is how Delegates would be selected. There is no requirement that the state Delegates be elected (as legislators are), which means they could be totally unaccountable to the People.
In 1971 and 1973, former Senator Sam Erwin (D-NC) sponsored legislation to enact a statute regulating how an Article V convention would be conducted. Although Erwin’s bill passed the Senate unanimously both times, it died in the House Judiciary Committee. During the late 1980s through 1991, similar legislation was proposed by Senator Orrin Hatch (R-UT), but it, too, went nowhere.
The most activity (and most threatening to democracy) has come from an organization called the Convention of States (COS). Mark Meckler, the founder of COS is a former founder of the Tea Party Patriots. Other organizations that have been heavily involved with the Convention of States/Citizens for Self-Governance are the Heritage Foundation (of Project 2025 infamy) and the American Legislative Exchange Council (ALEC). These groups are known to promote the interests of the wealthy and corporations as opposed to the interests of working people. They have proposed an “aggregated strategy” where a Convention could hear multiple unrelated applications. Subjects being proposed by this group are (1) requiring a balanced budget; (2) requiring the states to approve increases in the national debt; (3) repealing the 16th Amendment and requiring a supermajority to impose taxes; (4) restricting the scope of the Commerce Clause; (5) imposing Congressional term limits; and (6) giving the states power to abrogate any federal law, regulation or executive order. Thankfully, the re-legalization of slavery is not on the list.
The problem with our system as it exists now (which is not limited to the Constitution itself) is that it is totally dominated by the will of the wealthy and privileged, while the voices of ordinary working people (the “99%”) are unheard, if not deliberately excluded. If the operation of an Article V Convention is controlled by interests such as ALEC and the Heritage Foundation, it will further entrench the rule of the plutocracy over the people, and the rights of property over human rights and basic needs. A likely practical result is that most of the rest of us will be working even harder for less, and witness further degradation of our civic and community life.
The Promise
Like most everything else, an Article V Convention represents a yin and yang gateway to either an aggravation of the current domination of plutocracy, or the promise of real reforms that have the potential to make a positive difference for the rest of us. Below is a list of Amendments that would bolster democracy and go a long way toward operationalizing our unrealized original ideals:
1. An express provision declaring that corporations are creatures of statute, NOT people, and therefore are not entitled to rights conferred in this Constitution that apply to natural persons. Although the purpose of the 13th and 14th Amendments was to insure equal rights of newly freed slaves, corporations have made far more use of these protections in advancing their own interests at the expense of the People.
2. Campaign finance reform. Please refer to the prior discussion about overturning Citizens United. This Amendment should include an express acknowledgement that money (i.e., “property”) is not entitled to the same protection as free speech and other civil rights.
3. Abolish the Senate and expand the House to ensure equal representation. The Senate is a holdover from an agreement with the slaveholding states that ensured equal representation of each state in the upper chamber, regardless of population. Today, a Senator from Wyoming represents 290,000 people while a Senator from California represents 19.8 million people, giving the citizens of Wyoming a voice 68 times greater than the citizens of California.
4. Require non-partisan redistricting commissions in the states for federal elections.
5. Reform the Electoral College. Although it is rare historically, we have seen a President elected by an Electoral College majority who nonetheless lost based on the popular vote twice within 20 years. Moreover, as most of us witnessed on January 6, 2021, the current logistics for the counting of Electoral votes leaves too much leeway for mischief and corruption. Enshrine the concept of One Person One Vote and all votes are equal.
6. Make the right to vote explicit and sacrosanct. People may be surprised to learn that there is no express guarantee of the right to vote in the Constitution. Rather, there are prohibitions against infringing the right to vote based on race, color or previous condition of servitude (Am. XV) or based on sex (Am. XIX). Having the right to vote be unambiguous and apply to everyone equally will make it harder for Judges to write decisions that turn out to be bad law (e.g. Shelby County v. Holder).
7. Congressional term limits. Ironically, this is one thing that progressives and the oligarchs/corporatocracy seem to agree on. Also ironically, it could potentially make it more expensive for the plutocrats to own a Congressperson, as they would have to “buy in” each time a representative was term-limited out.
8. Acknowledging (and permitting) a higher need for regulation of entities based on size, wealth, privilege, power, and control over public resources. That is, laws could be “constitutional” if applied to behemoths like Amazon or Facebook, but may not be permissible if applied to mom-and-pop businesses on Main Street (an Equal Protection exception).
9. Abolish blanket Presidential immunity. NO ONE is above the law.
10. Limiting the Presidential pardon power. This should include a requirement to weigh and balance harmfulness to the rule of law.
So, an Article V Convention has the potential to either be a disaster for We the People or to remedy many of the undemocratic features that have been with us since America’s founding. Obviously, if we want such a Convention to “work” for We the People, it cannot happen with the current Congress and maladministration in charge. And even with a change of the folks in power, Congress needs to adopt unambiguous rules about how such a Convention should be conducted in advance of such a Convention.
First, how would Delegates be selected? Who is going to be at the table where important decisions are made? It is imperative that there be procedures to include the voices of the marginalized and those who historically have not been heard in the corridors of power.
Second, regardless of the number of subjects that will be allowed to be brought up at any Convention, there needs to be rules about notice and limits on changes past a certain number of days in advance of the Convention.
Third, the powers of the States and Congress (to set rules) and the Courts (to hear appeals—or not) must be explicit and unambiguous.
