s to streamline and regularize the use of Article V. But fear of a “runaway convention” should never compel them to stand down from substantively using what Federalist No. 85 called the states’ ultimate power “to erect barriers against the encroachments of the national authority.”
There is Nothing to Fear about Article V But Fear Itself
Rappaport describes the fear of a runaway convention as arising from the belief that an Article V convention cannot be limited to a particular amendment idea. This fear should be examined more closely before taking it seriously. As previously intimated, James Madison certainly had the belief that states could target the Article V process to specific reforms. That belief was rooted in the text of Article V, which requires Congress to call an Article V convention upon “application” of state legislatures. Contemporaneous legal dictionaries reveal that the word “application” was a legal term of art that described a written means of petitioning a court for specific relief. The historical record of “applications” to the Continental Congress confirms that this meaning extended to legislative bodies as well. Its usage thus plainly grants to state legislatures the power to specify that Congress call an Article V convention for a specific purpose. Indeed, it was customary during the colonial and founding era for interstate conventions to be called for specified purposes. Finally, Federalist No. 43 emphasizes that Article V “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”
In short, the belief that an Article V convention must be unlimited in scope is textually and historically unsupported. But even if courts refused to enforce subject matter limitations on an Article V convention, that risk hardly presents the kind of terrifying bogeyman that justifies constructing a “spheres within spheres” legal framework before using Article V substantively. The checks and balances built 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