—Richard Albert, Boston College Law School
The New York Times recently published an article speculating on the possibility of an imminent constitutional convention in the United States. The piece identified a balanced-budget amendment proposal as the catalyst for the convention:
So far, 28 states have adopted resolutions calling for a convention on a balanced-budget amendment, including 10 in the past three years, and two, Oklahoma and West Virginia, this spring. That is just six states short of the 34 needed to invoke the Article 5 clause.
Whatever the merits of a balanced-budget amendment, perhaps the more interesting question is whether the convention would be limited to that proposal alone. The article continues:
Yet debate over an amendment’s merits has taken a back seat to a more fundamental question: whether delegates to a convention could be trusted not to tinker with other parts of the Constitution.
Article 5 places no limits on a convention’s power. Some experts note that the Constitution itself arose from a convention called to amend its predecessor, the Articles of Confederation — and tore up the document and started from scratch. That convention even scrapped the Articles’ terms of ratification — unanimous approval by the states — and substituted a lower barrier, three-fourths of states. (Some pro-amendment conservatives argue that the delegates to Philadelphia did not go rogue, but always planned to rewrite the Articles.)
So what rules would an amendments convention follow? “The answer to almost every question you could ask is ‘We don’t know,’” said Michael J. Klarman, a constitutional law expert at Harvard whose book on that convention, “The Framers’ Coup: The Making of the United States Constitution,” will be published in October. “I think a convention can do anything they want — re-establish slavery, establish a national church. I just don’t think there’s any limit.”
Michael J. Gerhardt, a University of North Carolina law professor and scholar in residence at the National Constitution Center in Philadelphia, said Article 5’s reticence gave states leeway to improvise.
“Once you have a convention, then in some respects it becomes a free-for-all,” he said. “All bets are off.”
In light of this renewed interest in the possibility of a constitutional convention, let me recommend a new book I have just read.
In Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution (UGA Press 2016), John Vile explores in great detail the history, theory and practice of constitutional conventions in the United States. Vile argues that a constitutional convention could indeed be limited to a single subject.
While not everyone will agree with his conclusion–the Philadelphia Convention seems to set a precedent for the opposing view–the book is well worth reading for its useful introduction to the history of constitutional conventions in the United States and also for its critical analysis of the scholarly debate on the many questions and controversies surrounding a possible constitutional convention in the United States.
Suggested Citation: Richard Albert, Book Review, A Constitutional Convention in the United States? A Review of “In Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution” by John Vile, Sept. 7, 2016, at: http://www.iconnectblog.com/2016/09/virtual-bookshelf-a-constitutional-convention-in-the-united-states