QUESTIONS AND ANSWERS
ABOUT AMENDING THE U.S. CONSTITUTION
BY NICK DRANIAS, CONSTITUTIONAL SCHOLAR AT THE GOLDWATER INSTITUTE
Q: What is the process for amending the U.S. Constitution?
A: Article V of the U.S. Constitution allows either two-thirds of Congress or two-thirds of
the states (34) to initiate a process for proposing amendments to the U.S. Constitution.
Because states hold a similar power to Congress when it comes to proposing
constitutional amendments, Article V says that Congress is required to call a convention
to propose constitutional amendments whenever 34 states submit an application for one.
If the process is initiated by the states, then an amendments convention must be held to
allow delegates from each state to meet to vote for or against proposing one or more
amendments. Congress then decides whether the state legislatures or conventions in
each state will ratify the amendment. If three-quarters (38) of these bodies ratify the
amendment, it is added to the constitution.
Q: Why did the founders include Article V in the constitution?
A: The Founding Fathers knew there might be faults in the design of the federal
government, that there was no way that they could anticipate all of the future needs of
the Republic, but they did understand the possibility of the federal government
centralizing power and becoming irresponsible. For these reasons, they created a
process that would allow for the adaptation and correction of the Constitution and for the
states to reign in the federal government.
This authority was deliberately granted to the states by this country’s Founders so both
the states and the people, who have more direct control over their state governments,
would have a failsafe mechanism to control the federal government. And the Founders
meant for the states and the people to use this power regularly.
Q: Have the States ever proposed amendments?
A: There have been hundreds of applications for amendments conventions by the states
since our founding. Two-thirds of the states have never applied for the same amendment
subject using the same language. Sometimes as in the case of 17th Amendment, the
popular election of Senators, and the 21st Amendment, the repeal of prohibition,
Congress saw the political momentum building behind the state applications, and
proposed the amendment before the states reached the required two-thirds threshold.
Q: A new amendment to the Constitution requires ratification by the State Legislatures
or a Convention in each State at the selection of Congress. Why did the founders do
this?
A: The Founders wanted to be sure that amendments were truly necessary and
reflected the will of the people. If they made it too easy to amend the Constitution, it
might result in some amendments that wouldn’t reflect the Founding Father’s visions for
the country.
Q: Would it be possible for an amendments convention to get off track, or “runaway,”
and take away our rights, or result in wholesale destruction of the constitution?
A: No. First, constitutional scholars have examined historical records of the debate
about the U.S. Constitution and confirmed that states have the power to limit an
amendments convention to a single subject and concept. For example, the agenda for
an amendments convention could be limited to the subject matter of whether to propose
an amendment to the Constitution providing that an increase in the federal debt requires
approval from a majority of the legislatures of the separate states. In this case, this
would be the only subject that the delegates could legally advance in their deliberations.
The delegates to the amendments convention would be legally required to stay within
the bounds of the agenda specified in the applications that led to the convention.
Second, the amendment language that is proposed by the amendments convention
requires a super majority of states to ratify it before it becomes part of our constitution.
This insures that any amendment is broadly and popularly supported by Americans.
Third, during the constitutional convention of 1787, the Founders debated this specific
point and ultimately rejected language that would have allowed Article V to be used to
call for a convention that could re-write the Constitution. Instead, Article V requires any
amendment convention to operate within the existing limits of the Constitution.
There is a far greater risk to our freedoms from a “runaway” federal government that no
longer stays within the confines of the constitution, or reinterprets the constitution to
serve its own ends. In fact, the Article V process is the method recommended by George
Washington, James Madison, Thomas Jefferson and Alexander Hamilton to rein in the
federal government when it oversteps its bounds.
Q: Many people believe that the convention cannot be limited, and that like the original
convention the delegates could just secretly rewrite the entire constitution. What is the
reason behind this popular misunderstanding?
A: The fear of a runaway convention was promoted during the 1970s and 80s, when an
amendments convention to require a balanced federal budget was proposed by nearly
two-thirds of states. Congress and special interests promoted this false idea to scare the
American people, and put pressure on state legislators to rescind their calls for the
amendment. The federal government has great power, and its allies will jealously protect
its ability to act without restraint. Sadly the fear-mongering of that time gave rise to this
myth of today.
Contrary to popular opinion the original constitutional convention was not a “runaway”
convention. They were assembled to correct the Articles of Confederation under a very
broad call and most delegates were given a general authority to establish a workable
federal government from the ground up.
These conclusions are based on extensive examination of the historical record and
debate at the original Constitutional Convention.
Q: Some limited government advocates have said that calling a convention to propose
amendments could open the door to amendments that would expand the power of the
federal government, not limit it. How can we be sure that won’t happen?
A: A peer-reviewed academic study from the Goldwater Institute found there is no
reason to fear a convention to propose amendments. Study author and renowned
constitutional scholar Robert G. Natelson analyzed historical records from the Foundingera and found that a clear roadmap to guide and limit the convention process was
established. That roadmap clearly shows that a “runaway convention” is simply not
possible, and if a convention did somehow run away, the results would not be legally
binding on any state.
Special Thanks to the Goldwater Institute and RestoringFreedom.org
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