 into Article V are daunting. Thirteen states can block any proposed amendment from ever becoming constitutional law. That means 13 out of 99 legislative chambers could block any proposed amendment if Congress requires ratification by thirty-eight state legislatures.
Even if proposed amendments never go stale, it is doubtful radical ideas could ever surmount this high hurdle unless the political will already existed for them to become law. And if the political will existed to ratify a radical policy by way of the state-initiated Article V process, there is every reason to believe that the Executive, Judicial and Legislative Branches of the federal government would have long ago beat any runaway convention to the punch through administrative rulemaking, ordinary laws, treaties or congressionally-proposed constitutional amendments. A runaway federal government renders any concern about a runaway Article V convention essentially moot.
Don’t Forget the Current Constitutional Crisis
In the final analysis, whatever risk might be associated with states substantively using their Article V power must be considered relative to the reality that Washington, D.C. already is a “runaway convention.” It is for this fundamental reason that Prof. Rappaport is mistaken to construct his policy recommendations upon a foundation that takes for granted fears about a runaway convention.
There is no such thing as a risk-free decision in life, much less a risk-free constitutional process. Rather than devising a reform that is premised on avoiding the real or imagined risks of using Article V, constitutionalists should instead encourage policy makers to assess those supposed risks against the clear and present danger of inaction. A reasonable assessment reveals that time is growing short for citizens and states to check and balance federal power.
Under these circumstances, a constitutional crisis will not be averted if advocates of substantive reform stand down under Article V. Standing down will only enable the continuation of the current constitutional crisis caused by the unceasing and increasingly dangerous expansion of federal power. Article V as it currently exists gives states the ability to threaten the status quo with a fundamental decentralization of power. If used effectively, that threat at the very least would force Congress to look in its rear view mirror and hesitate before exceeding constitutional limits.
Fortunately, there is no reason to view Rappaport’s “state drafting reform” idea as necessarily incompatible with concurrently building a more substantive Article V movement. Not only would the same social and political networks naturally be leveraged for both efforts, the investment of time and effort in organizing and promoting the “state drafting reform” is precisely the kind of collective effort that must be made to persuade and organize states to use their existing Article V power substantively. The concurrency of both efforts could even inspire the formation of the previously described interstate compact. But for such synergies to be preserved, it is absolutely critical that any “state drafting reform” be presented as a means of streamlining and enhancing the power of states to achieve constitutional reform. It must not appease or legitimize unreasonable fear of a runaway convention.