A Response to the Runaway Scenario

Many lawmakers and activists, and most of the public, now favor constitutional amendments to impose financial restraints on Congress, impose term limits, and adopt some version of campaign finance reform. Because experience shows that Congress is unlikely to propose amendments to cure federal dysfunction, there is growing interest using the Constitution’s legislative application and convention method for proposing amendments.

Article V, the part of the Constitution that authorizes amendments, provides that any amendment must be ratified by three fourths of the states (now 38). Before an amendment can be ratified, however, it must first be proposed. Proposal may be by Congress or by an assembly the Constitution calls a convention for proposing amendments. This is a kind of convention of the states that Congress must call if two thirds of the state legislatures (34) demand it by passing formal “applications” for a convention.

The Constitution’s framers and ratifiers saw the application and convention procedure as central to the document’s checks and balances. Yet, while there have been many conventions of states, none has been held under Article V. One reason is that for the Constitution’s first 180 years Congress was willing to propose reforms on its own when the states threatened it with a convention. Legislative applications for a convention induced Congress to propose the Bill of Rights, the 17th amendment, and the 22nd amendment.

In the ensuing years, however, Congress has become more stubborn. Assisting it have been people disseminating the runaway scenario—a frightful prediction of how a convention for proposing amendments would act. Their goal, apparently, is to disable a central constitutional check on the federal government.

The essence of the runaway scenario is that any convention for proposing amendments would be a “constitutional convention” in which the delegates disregard limits on their authority and push America further along the road to perdition. The runaway story was invented early in the 20th century by conservatives opposing a liberal amendment, but it was first widely popularized in the 1960s and 1970s by liberal politicians, judges, and activists eager to block conservative amendments. They were assisted in this cause, knowingly or not, by major media outlets. Since that time a handful of deeply conservative groups have teamed up with liberal organizations in promoting the runaway story. Not surprisingly, most of the organizations leading the opposition are based in or near Washington, D.C.—the place with the greatest stake in maintaining the status quo.

More surprising has been the willingness of many educated people to accept the runaway scenario. Indeed, I subscribed to much of it myself for most of my academic career. I changed my mind only when I learned during a routine research project that it was a work of speculative fiction.

Taking anti-convention activists seriously by responding in detail to their objections is a game of Whack A Mole. This is because the objections usually are not raised for any merit they might have, but for political or fundraising purposes. This is why as soon as each objection has been discredited, another pops up. As I write, for example, the latest “mole” to pop up is that Congress — or, more specifically, Speaker Nancy Pelosi — might control state ratifying conventions by, inter alia, laying down a rule that only Democrats can serve as delegates. (Actually, both history and case law tell us that state ratifying conventions are structured and called by the state legislatures in accordance with historical standards, and not by Congress; and that when those conventions meet they adopt their own rules.)

However, the specific objection called the “runaway scenario” has been around for so long and used with such effect, that I have agreed to address it here.

The component claims in the runaway scenario are as follows:

(1) A convention for proposing amendments is a constitutional convention akin to the 1787 Philadelphia gathering.

(2) An American convention is an inherently uncontrollable body: conventions are instruments of the people’s sovereign will, and the gaps in Article V leave the convention for proposing amendments unbridled.

(3) Highlighting the risk is the “fact” that the 1787 convention disregarded the limits in its congressional call—i.e., it was called to propose amending the Articles of Confederation and wrote an entirely new constitution instead.

(4) A new convention could obtain the changes it desires by altering the ratification process, as the 1787 Constitutional Convention did.

Let’s begin with No. 4: Anyone who reads the Constitution honestly understands that a convention could not change the ratification process because Article V states explicitly that an amendment becomes effective only if “ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.” A convention for proposing amendments (unlike the 1787 gathering) operates under the Constitution and is bound by its terms. It has no power to change the ratification procedure—or, for that matter, to do anything but “propos[e].” Unless the convention somehow managed to enlist the Pentagon and stage a military coup, any action so pretentious as trying to change the ratification process would be laughed out of the public square.

Understanding why claims (1) – (3) are nonsense requires more explanation.

Claim #1  is that a convention for proposing amendments is a “constitutional convention.” Why, then does the Constitution instead call it a “convention for proposing amendments”? The reason is that the two kinds of conclaves are not the same. Professor Ann Stuart Diamond observed nearly 40 years ago that a constitutional convention is charged with drafting, proposing, and sometimes adopting, a NEW constitution. A convention for proposing amendments is charged with drafting and proposing one or more amendments to the EXISTING Constitution. In the words of Article V, the convention is to propose measures that, if ratified, “shall be valid to all Intents and Purposes, as Part of THIS Constitution”—not some new one. And in the words of James Madison, a constitutional convention is “plenipotentiary,” while an amendments convention operates subject to the “forms of the constitution.”

In fact the term “constitutional convention” was not applied to an Article V gathering until the 20th century. The earliest usages apparently were mistakes, but opponents eventually seized on the mislabeling as a propaganda device. As Professor Diamond noted, the constitutional convention label is “a rhetorical ploy to terrify sensible people.”

We have had many interstate conventions that proposed amendments:  the 1754 Albany Congress, which proposed a plan of colonial union; the First Continental Congress, which institutionalized interstate cooperation; the 1780 Hartford Convention, which formally recommended amending the Articles of Confederation; the 1786 Annapolis Convention, which also was called to recommend amendments; the 1814 Hartford Convention, which proposed constitutional amendments; and the 1861 Washington Conference Convention, which proposed a complicated constitutional amendment to avert the Civil War.

But no one ever thought of labeling any if those amendment conventions a “constitutional convention.” The term is used only to brand an Article V convention—in order to, as Professor Diamond wrote, “terrify sensible people.”

Runaway claim #2 is that an American convention is an inherently uncontrollable body—that conventions are instruments of the people’s sovereign will, and the gaps in Article V leave the convention for proposing amendments unbridled. You can marshal a few writers in support of that opinion, and in the middle of the American Revolution a few state conventions acted that way because their legislatures were not operating. But the notion that a convention is sovereign runs contrary to both prevailing practice and established law:  Throughout American history almost all conventions have been limited by topic. And under established constitutional law, assemblies operating under Article V derive all their authority exclusively from the Constitution, and their power is limited accordingly. To take one example: A state convention commissioned to consider only a particular amendment can be limited to that purpose.  In Re Opinions of the Justices, 204 N.C. 306, 172 S.E. 474 (1933).

Some alarmists counter with a speculative essay written by Yale professor Akhil Amar when he was fresh out of law school. (The essay was written long ago and without the benefit of modern Article V scholarship.) In it, the youthful Amar argued that the people can, by convention, reform the political system extra-constitutionally. Now, to anyone familiar with the Declaration of Independence, this is an unsurprising thesis. Amar also suggested that some parts of the Constitution recognize this “popular sovereignty” power. Butand this is the important pointAmar explicitly distinguished the whole idea from Article V.

Finally, we come to Claim #3. This is the well-worn assertion that the 1787 convention was called by Congress for the limited purpose of amending the Articles of Confederation, but instead “ran away” by drafting a new document. This assertion is true only to the extent that the convention wrote a new constitution. The rest of it has been about as thoroughly debunked as any historical assertion can be. Here are the facts:

  • The Constitutional Convention was not called by Congress. It was called by Virginia in response to the recommendation of the Annapolis Convention. (During the Founding Era, most multi-state conventions were called by individual states.)
  • During the Founding Era, the term “confederation” typically meant a league or treaty arrangement among sovereign states. It did not mean a federal government as we now use that term. The Articles of Confederation were, unlike the Constitution, essentially a treaty among sovereign states, and the role of the Confederation Congress was much like the role of the North Atlantic Council in NATO today. Signatories of treaties always have the power to reconsider the terms of their connections, even if their coordinating agent objects.
  • Under Article II of the Articles of Confederation the states retained broad authority to call a convention outside the scope of the Articles. The 1787 convention was only one of several that convened in this way: Others met in 1776-77, 1777 (twice), 1778, 1779, 1780 (twice), 1781, and 1786.
  • Ten of the 12 states participating in the Constitutional Convention authorized their commissioners (delegates) to consider changes in the “federal constitution” without limiting them to amending the Articles of Confederation. The unanimous authority of 18th century dictionaries tells us that “constitution” in this context meant the entire political system, not merely the Articles as such. This is why the Declaration of Independence could refer to “a jurisdiction foreign to our [American] Constitution” even though in 1776 there was no single document governing the colonies.
  • The participants understood that the convention’s power would derive from the state legislatures, not from Congress or from the Articles. John Jay, then serving as U.S. secretary of foreign affairs, pointed this out in a January 7, 1787 letter to George Washington. Jay also noted that such a convention would have only power to propose, not decide.
  • The source of the convention’s authority, and its breadth, was well understood in Congress. That’s why the two states that disagreed—New York and Massachusetts—asked Congress to recommend that the convention be restricted to amending the Articles. Their proposal was rejected in favor of a resolution stating only that “in the opinion of Congress it is expedient” that the convention be so limited. Remember that Congress was a mere agent of the participating states, had no power to limit their decisions.
  • In Philadelphia, only the seven commissioners from New York and Massachusetts lacked authority to propose a new form of government. Of the seven, only three signed the Constitution, one of these in an individual capacity (Hamilton). Perhaps Massachusetts’ Nathaniel Gorham and Rufus King “ran away,” but no one else did.
  • The convention, acting outside the Articles, was under no obligation to recommend a ratification procedure consistent with the Articles. As it happened however, the Articles’ requirements were met, for the Constitution was implicitly approved by Congress and expressly approved by every state.

Of course, even if the 1787 convention had run away, the example would be totally irrelevant to modern conditions. The 1787 convention operated in secret. A modern convention would be open to public view. With the exception of the Pennsylvania commissioners, the delegates to the 1787 convention were far from their state legislatures and out of contact with them. Today, as Walter Phelps Hall and Robert Greenhalgh Albion pointed out in their History of England, modern communications enable state authorities to control their diplomats to the point that the latter can be turned into “nothing but damned errand boys at the end of a wire.” At any convention for proposing amendments, almost everything the commissioners do will be open to the view of the state commissioning authorities, who can be in constant contact with them, sending additional instructions or implementing recalls, as necessary.

Finally, even if the 1787 convention had run away, why is the conduct of that convention “evidence” while the law-abiding behavior of 40+ other interstate and inter-colonial conventions is just ignored? The answer, of course, is that the academics who invented the runaway scenario were ignorant of those other conventions (because they didn’t do their homework), and those who promote the scenario today are either ignorant of them or willfully ignoring them.

Now, let’s return to reality: As a practical matter, there are redundant protections against a runaway convention for proposing amendments:

*          political factors: the damage that disregard of clear limits can do to a commissioner’s reputation;

*          popular opinion;

*          state applications defining the scope;

*          the limit on the scope of the call;

*          the potential for lawsuits to enforce the foregoing;

*          state instruction of commissioners;

*          state power to recall commissioners;

*          the need to garner a majority of state committees (delegations) at the convention;

*          Congress’s ability (and duty) to refuse to choose a mode of ratification for an ultra vires proposal;

*          the requirement that proposals be ratified by 38 states; and

*          the potential for more judicial challenge, at every stage of the process.

You can argue against the efficacy of any one or two of these if you like. But combined together, they reduce the risks almost to the vanishing point. Consider, by contrast, the unrestrained reality of the runaway Congress.

One last observation: The Founders adopted the state application and convention procedure as an integral portion of the Constitution’s checks and balances. They inserted the procedure for the state lawmakers to use, not to ignore. The state legislatures’ inexcusable neglect of the procedure has had predictable results.

Ask yourself: If James Madison and John Dickinson were to come among us today, and we were to tell them of our current predicament, how would they respond? One of their first questions would be to ask if we had used Article V’s state-driven process to address our problems. When we admitted that we had not—that we had allowed ourselves to be gulled by alarmists and quacks—what would those Founders say then?

I think they would tell us that the whole mess was our own fault.

And they would be right.