3-Minute Civics: A different – and problematic – way to amend the Constitution

For the Monitor
Published: 1/26/2020 7:15:23 AM
Modified: 1/26/2020 7:15:09 AM

You may have been hearing news reports and citizen input about the proposed House Concurrent Resolution 9 (HCR 9), introduced at the State House this month and presently under consideration by the State-Federal Relations and Veterans Affairs Committee in the House. As proposed, HCR 9 would rescind all prior applications by the New Hampshire Legislature submitted to Congress seeking a federal constitutional convention.

What’s this all about? What would HCR 9 accomplish? And why has it attracted attention?

To better understand HCR 9, we first need to step back from the proposed resolution and look at Article V of the U.S. Constitution. That article, drafted by the Framers during the Constitutional Convention in Philadelphia in 1787, provides two ways to amend our nation’s fundamental charter. The first way is that Congress, by a two-thirds vote of both houses, may propose amendments to the states for ratification, a procedure that has been used for all 27 current amendments, including the Bill of Rights ratified in 1791. Alternatively, on the application of two-thirds of the state legislatures (that’s 34 states), Article V requires Congress “to call a Convention for proposing Amendments.” This alternative, known as an “Article V convention,” never has been used since the Constitution was ratified in 1788.

Although no Article V convention has ever taken place, it’s not for lack of requests by the states. While the exact number is difficult to ascertain, one Article V convention advocacy group estimates that, since 1789, states have submitted more than 700 different applications for Article V conventions. Whatever the precise number might be, over the years applications have focused on a wide variety of topics; issues have included direct election of U.S. senators, eliminating the Electoral College, doing away with federal income tax, balancing the federal budget, prohibiting abortion, overturning the Supreme Court’s Citizens United decision, restricting the oversight of public schools to the states, limiting the authority of the federal government, and allowing prayer in public schools – to name just a handful.

The last 10 to 15 years have seen a renewed interest in Article V conventions from both the right and the left – from the Tea Party seeking a balanced federal budget and from groups such as Occupy Wall Street seeking to change the definition of corporate personhood or to ban allegedly restrictive state voter identification requirements.

The mainstream explanation for why Congress has never acted on states’ applications for Article V conventions is that the requisite 34-state threshold (the two-thirds number required by Article V) never was achieved, although Article V convention advocacy groups on the right see it otherwise, blaming Congress for not keeping an accurate record of states’ applications. But there’s no dispute that the federal record-keeping of states’ applications could be improved.

While the Article V convention route to a constitutional amendment could arguably be seen today as an attractive option for advocacy groups because it suggests a popular, grassroots appeal and because of the gridlock in Congress, it also raises an array of thorny legal questions – and possibly some constitutional questions as well. Although the Constitution provides for this route to amendment, it does not provide any details as to how the process should unfold.

In addition, Congress has never created any governing rules, and no court has had an opportunity to provide judicial guidance.

Thus many critically important questions remain unanswered, such as: What is the standard for a valid application to Congress? How many applications have actually been submitted? And how long does an application remain valid?

The Constitution doesn’t provide any direction as to how an Article V convention would operate or how delegates would be chosen. Would the convention be limited to considering just one pre-assigned topic, or could it, as some advocacy groups believe, propose an amendment on any topic, or even replace parts of the Constitution?

There also are questions about how representation and voting would work; that is, would each state be represented equally or would representation be based on population?

While legal scholars have offered various opinions, these difficult and serious questions presumably would be answered only through time-consuming and expensive litigation. And most importantly, these answers could profoundly impact our Constitution, our government and our way of life. In other words, a lot is at stake here.

Returning to HCR 9, recall that it doesn’t seek to amend the Constitution using an Article V convention. Rather, it would rescind all prior Article V applications submitted to Congress by the New Hampshire Legislature. Not surprisingly in this uncharted territory, whether states have the constitutional authority to repeal or rescind earlier applications for an Article V is itself uncertain.

(Jill Blackmer, a retired lawyer, teaches at St. Paul’s School.)




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