Do The States Need Congress’s Permission To Hold A Constitutional Convention?
Ask Civics 101
By MITCHELL SCACCHI • JUL 9, 2021
Our question this week comes from a listener who asks: Under Article V of the U.S. Constitution, do the states need Congress’s permission to hold a convention to propose constitutional amendments, or was this originally proposed by the Framers as a way to bypass Congress in order to amend the Constitution?
Article V of the U.S. Constitution lays out the amendment process for altering our governmental structure. It’s a product of two systems: checks and balances and federalism. The former is an arrangement of counterbalancing influences preventing all power from residing in one branch of government, and the latter is a structure that divides power between the national and state governments. As such, the answer is, no, the states don’t need Congress’s permission to apply for and hold a convention to propose constitutional amendments. Rather, this was included by the Framers as a way for the states to bypass Congress in the amendment process.
To explain this in more detail, let’s start by taking a look at Article V. There are two steps to amend the Constitution. The first step, proposal, can be done one of two ways. Congress can propose amendments when two-thirds of both houses deem it necessary, or the states can propose amendments when two-thirds of the state legislatures apply for and Congress calls a convention for that purpose.
Once proposed, the next step is ratification. Congress chooses whether ratification should be considered by state legislatures or by state conventions created for that purpose. Three-fourths of the states, whether as legislatures or conventions, must ratify an amendment in order for it to become part of the Constitution. The Twenty-First Amendment repealing prohibition remains the only one that was ratified by conventions in three-fourths of the states.
The listener’s question focuses on the first step. The text of Article V states, “on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments.” Let’s call this an Article V convention.
Interestingly, this type of convention has never been called! All 27 amendments to the Constitution, and thousands of others that died during the ratification process, were proposed by two-thirds of both houses of Congress. Today, 34 of the 50 state legislatures would need to apply in order for Congress to call a constitutional convention.
The Article V convention is a way for the states to bypass Congress. When two-thirds of the state legislatures apply for a convention, Congress is constitutionally required to call it. In Federalist No. 85, Alexander Hamilton wrote, “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.” In other words, the states don’t need Congress’s permission. Congress doesn’t get to decide whether the states should or shouldn’t hold an Article V convention; Congress actually doesn’t have any say in the matter besides merely calling the convention when two-thirds of the state legislatures apply.
Once called, the Article V convention can propose amendments that are then sent to the states for ratification. By creating a process for the states to propose amendments without Congress’s permission, the Framers created a way to check and balance Congress’s power over the amendment process. Moreover, the Framers wanted the states to retain a substantial amount of power under the Constitution, so granting them the shared power of proposing amendments was logical under their federalist design.
Amendments proposed by the Article V convention are also not subject to Congress’s approval. There are conceivably many constitutional amendments that could affect Congress but, no matter how popular, might not be in Congress’s interest to propose. The Framers knew there should be another way to formally propose amendments to the Constitution when Congress drags its feet.
Let’s use the example of congressional term limits. Getting two-thirds of the House of Representatives and the Senate to propose a constitutional amendment establishing term limits for themselves and future lawmakers seems unlikely. So, if a congressional term limits amendment was popular enough, at least two-thirds of the states could go around Congress, apply for an Article V convention to propose this amendment, and send it to the states for ratification. If three-fourths of the states approve, it would become the law of the land without Congress’s permission or support.