deral government over PPACA in federal court could have instead responded to the preceding congressional debate by jointly introducing Article V applications aimed at prohibiting the federal government from regulating freedom of choice in health plans. And with the concurrent introduction and likely approval of identical Article V applications in 28 state legislatures (only six short of the 34 state threshold needed to trigger the call for a convention), it is entirely conceivable that the resulting political threat would have influenced enough votes in Congress to block the passage of PPACA.
As this thought experiment suggests, the power of states to check and balance an overreaching federal government would be vastly increased if states regularized and streamlined the use of Article V. Indeed, the mere existence of an organized approach to Article V among the states would substantially influence congressional behavior without a convention ever being convened—whether or not one believes that an Article V convention can be limited to specific amendment ideas. This prognostication is justified by more than hypothetical reasoning. Congress famously proposed the 17th Amendment, establishing the popular election of U.S. Senators, only after a carefully coordinated effort came within one state of reaching the threshold needed to compel Congress to convene an Article V convention for the same purpose.
Professor Rappaport is thus entirely correct that the states could restore balance to our system of dual sovereignty if they organized regular advisory conventions for the purpose of crafting and proposing specific ideas for federal constitutional amendments. However, much of what Rappaport would like to accomplish can already be achieved without a constitutional amendment also giving states the power to propose specific amendments directly for ratification. Constitutionalists should therefore embrace the general thrust of Rappaport’s “state drafting reform” to the extent that it inspires collective action among the states 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