Rob Natelson on the Article V Convention

In an article recently published in the Harvard Journal of Law and Public Policy, Professor Rob Natelson provides a brief but illuminating summary of how the Article V convention fits within the constitutional plan designed by the Founders. Natelson, the nation’s foremost expert on state initiation of constitutional amendments, explains that the Article V convention played a pivotal role in addressing two main arguments made by anti-Federalists, who predicted that the Constitution would undermine the sovereignty and autonomy of the states:

The first argument was that the Constitution granted too much power to the federal government, which could lead to abuse of that power. The second argument was more subtle but ultimately proved more prescient: Even if the Constitution, when honestly, fairly, and objectively read, did not give the federal government excessive power, ambitious and clever people would nonetheless twist its language to justify the seizure by the central government of enormous power, regardless of the understanding of those who wrote and ratified the instrument.

R. Natelson, The Article V Convention Process and the Restoration of Federalism, 36 Harv. J. Law & Pub. Pol’y 955, 956 (Spring 2013).

The Article V convention responded to both of these arguments, as Madison and Hamilton took pains to point out in The Federalist. First, thanks to the convention process, 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.” Federalist No. 43 (Madison). Thus, to the extent the Constitution proved to give too much power to the “general government,” the states could “originate the amendment of errors” without being subject to a congressional veto. This addressed the fear that any excessive national power would be permanently entrenched.

Second, the Article V convention process gave the state legislatures a significant constitutional power to counteract overreach by Congress or the federal government. Hamilton explained in Federalist No. 85 that, as a consequence of Article V’s design, “[w]e may safely rely on the disposition of the state legislators to erect barriers against the encroachments of the national authority.” Thus, Natelson observes: “[T]he Founders saw the amendment procedure as more than a way of responding to changed circumstances. They saw it as a tool for curbing excesses and abuses.” 36 Harv. J. Law & Pub. Pol’y at 957.

While no Article V convention has ever been called, Natelson points out that state legislatures can use their power short of actually calling a convention. Id. at 959. If “state legislatures flex[] their Article V muscles by applying, in a concerted manner, for a convention to propose amendments,” they can force Congress to propose an amendment as the price of not actually triggering the convention call. Id. Thus, “the States forced the United States Senate to agree to the Seventeenth Amendment . . . when thirty-one of the necessary thirty-two [at the time] applied for a convention limited to proposing a direct election amendment.” Id. at 959-60.

If you would like to learn more about the Article V convention process (and you know you would), check out some of Professor Natelson’s other writings on the subject:

Founding Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615 (2013)

James Madison and the Constitution’s “Convention for Proposing Amendments,” 45 Akron L. Rev. (2012)

Amending the Constitution by Convention: Practical Guidance for Citizens and Policymakers (Independence Institute, 2012)

Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693 (2011)

The State-Application-and-Convention Method of Amending the Constitution: The Founding Era Vision, 28 Cooley L. Rev. 9 (2011)

Amending the Constitution by Convention: Lessons for Today from the Constitution’s First Century (Independence Institute, 2011)

Amending the Constitution by Convention: A More Complete View of the Founders’ Plan (Independence Institute, 2010)

You can also listen to Natelson discussing the Article V convention in this video.