How a Never-Used Provision in the Constitution Could Revolutionize Congress

(National Archives via AP)

It’s no secret to anybody that our federal government is out of control, and there doesn’t seem to be an end in sight to massive spending and power grabs at the federal level. Or is there?


A group of state legislators thinks they may have an idea, and it draws on a provision in the Constitution that has never been used.

Article V of the U.S. Constitution states (with emphasis added):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

For 233 years, no state legislature has tried to invoke that provision in Article V, but that may change. A group of conservative state legislators who met at the American Legislative Exchange Council’s policy conference last week is considering using Article V to develop amendments for a balanced federal budget and term limits for Congress.

The Hill reports:


“It’s really the last line of defense that we have. Right now, the federal government’s run away. They’re not going to pull their own power back. They’re not going to restrict themselves. And so this Article V convention is really, in my opinion, is the last option that we have,” said Iowa state Rep. John Wills (R), the state’s House Speaker pro tempore who backs the convention.

The American Legislative Exchange Council (ALEC) has backed the movement, and 15 states have signed on. It’s worth noting that every one of those states is firmly in GOP hands — Republican legislatures and governors. But they’re not alone. Bills have passed at least one legislative chamber in nine states, while another 17 states have proposed legislation.

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Article V calls for three-fourths of the states to approve any amendments, so it’s an uphill battle. The article is also vague about the process by which these amendments may make the rounds. Experts point out that the founders didn’t exactly follow the rules to approve the Constitution itself.

“Congress can purport to make whatever rules it wants for the convention. The convention can then throw them in the trash, which is certainly what the convention in Philadelphia did in 1787,” said David Super, a constitutional law expert at Georgetown Law. “There’s no guarantee that they will follow the ratification procedures. The only precedent we do have, they didn’t follow the ratification procedures.”


The ALEC proposal calls only for amendments involving term limits and balanced budgets, but what’s to stop states from adding their pet projects to the amendments, be they abortion, gun control, or climate change? Nothing, because, again, Article V is vague. But the legislators who have signed on with ALEC aren’t worried about someone or some group hijacking their movement.

“I don’t know that anything is set in stone. I’d like to see a well-rounded convention. I’d like to see us tackle the problems in general, with one fell swoop,” Wills said in an interview. “Let’s just tackle the problems that we have now and be done with it. Versus, you know, trying to deal with it to the future.”

What’s next? This movement will keep plugging away, convincing more states to sign on, of course. A red wave in 2022 could accelerate the call for these amendments, especially if GOP gains trickle down into state races. Stay tuned, and we’ll see what happens if the Article V movement gains even more support.


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