How Can States Avoid Article V 2nd Method Pitfalls?
States Avoid Article V 2nd Method Pitfalls
How Can States Avoid Article V 2nd Method Pitfalls and use their States article v Rights? The States, on behalf of the people of the state, will process this Amendment. The primary concern must be to get it through as easily as possible rather than break new constitutional ground and risk the attendant pitfalls. The States should make the Amendment and its ratification process as defensible as possible.
Though it is a Congressional responsibility, Congress has been remiss in not clarifying the procedures for using the Second Method. There have been many attempts to establish the procedures for the Second Method by congressional legislation or constitutional amendment, but to no avail. Fortunately, it is possible to use the Second Method without Congressional procedures by avoiding the undefined or ambiguous areas.
There is a risk of a newly elected State legislature deciding to try to rescind a petition (despite prior commitments not to rescind) is always present. Preferably, there should be support from more than the minimum of 34 States. Moreover, the States should all try to complete submittals within a short period to minimize opportunity for rescissions.
CRS has published three lengthy papers for Members and Committees of Congress. They cover a wide range of issues, but nowhere do they say that Congress can prevent an Article V Convention of the States, that such a Convention is not feasible, or that is not the appropriate vehicle for this Solution. In fact, a Limited Convention Amendment is the preferred approach to this problem. However, there are some notable nuances and traps to avoid:
- Amending the U.S. Constitution: by Congress or by Constitutional Convention, Thomas M. (Durbin), Legislative Attorney, American Law Division, May 10, 1995 (download crs1995durbin).
The Congressional Research Service (CRS) reviewed the Second Method procedures in 1995 Their report found five areas on which the Constitution is silent that might cause confusion and uncertainty, and a sixth area of procedural ambiguities. This Plan adds a seventh area to avoid excessive congressional delay and an eighth area to prevent Congress from undermining the application. In all cases the confusion, uncertainty and ambiguities should be avoidable by the States following the CRS report recommendations under the headings Procedural Issues and Federal Function Doctrine on the Constitutional Issues page of this web site. Following these recommendations will avoid Congressional fear of a “runaway” convention (download crs1995durbin).
- The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress by Thomas H. Neale, Specialist in American National Government, October 22, 2012 (download crs2012neale).
- The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress Thomas H. Neale Specialist in American National Government, April 11, 2014 (Download crs2014neale).
Congress Must Propose Ratification of an Amendment Approved by a Limited Convention
Alexander Hamilton explained the Article V Convention process in unmistakable terms: By the fifth article of the plan, the Congress will be obliged … to call a convention for proposing amendments…. The words of this article are peremptory. The Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body.” (Hamilton, Alexander. Federalist Papers, no. 85, 1788)
Each State Government Must Act Independently in Preparing Its Article V Limited Convention Amendment Application
“No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State…” (U.S. Constitution, Article 1, Section 10, Clause 3).Though it is doubtful that this really applies to an Article V Limited Convention Amendment Application, it is wise to avoid the unessential risk.