#49-50: Planning to update the Constitution
/These two essays consider the provision in Article V of the Constitution:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
If you skipped, Article V sets forth the method for changing the Constitution. There are two processes. The Congress and the states can work together to amend the Constitution one detail at a time. This has happened 27 times in the nation’s history.
The other way is for the states to call a constitutional convention. If the founders put those conditions in the Constitution, it seems clear that they expected them to be used. But there has been no Article V constitutional conventions in the nation’s 230 year history.
Hamilton wrote #49 and #50. The first considers the possibility of holding conventions as needed, with no fixed period of time between them. The second considers holding conventions are regular intervals. Hamilton begins with a statement of support for the principle of popular conventions:
As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.
But despite that opening, Hamilton insists the idea won’t work. If conventions were held too frequently, they would “deprive the government of that veneration which time bestows on everything.” If they were too infrequent, they would have no effect. Hamilton concludes that too often is bad, too seldom is bad, and there’s no middle ground.
He sees a particular danger in calling conventions when needed, because “The PASSIONS” (Hamilton always writes “passion” with all caps.) rather than “the REASON of the public would sit in judgment.” It is a fair point that a convention called all-of-a-sudden to deal with a crisis would likely over react. It was never the intention of the authors of the Constitution that a constitutional convention be called to deal with a crisis anyway.
Timing isn’t the only issue Hamilton brings up. For several other reasons, constitutional conventions “would not answer the purpose.” He imagines if congress misbehaved and the states called a convention to fix the abuse, members of Congress would fill up all the seats at the convention and would steer the discussion away from their misdeeds.
That argument described something that could happen, but not something that would sure to happen. It would be possible to hold a convention on a “Anyone but Congress; Anywhere but Washington” principle. But Hamilton was an elitist, and he believed that the clever chaps were already in the government and nobody on the outside were of much account:
"The important task would probably devolve on men who, with inferior capacities, would in other respects be little better qualified.
For a modern citizen, the key to Federalist #49 and 50 is that there has never been a constitutional convention under Article V in the nation’s 230 year history.
The prospects of an Article V convention lingers in the background, however. More than half of the states are on record as calling for one. Thirty-four states are needed. The number of states that should be counted is unclear because some states support a convention only to pass a balanced budget amendment or term limits for Congress, and other states want a convention with a wide-open agenda. It isn’t clear if state legislative action calling for a specific and limited convention should count toward the 34 states needed to call a convention.
America is a republic, and a citizens’ convention would certainly be a republican act. But many groups are opposed to the idea. Common Cause, a liberal organization, fears a constitutional convention because tax-avoiding libertarians might get control:
The unknowns surrounding a constitutional convention pose an unacceptable risk, particularly in the current polarized political climate. Given how close calling a new convention is, it’s time to spotlight that risk and sound an alarm for the preservation of our Constitution.
Too few Americans are even aware that a constitutional convention can be called, let alone that there would be no checks on its scope and further that the process to call one is well underway and being underwritten by some of the nation’s richest individuals.
Common Cause and other groups fear a so-called “runaway convention” where any sort of crazy change could happen. That sentiment is long-standing. In 2014, Supreme Court Justice Antonin Scalia said, “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”
Twenty-five years earlier, then-Chief Justice Warren Burger said the same:
[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda.
The caution behind these opinions seems wise. But it is also just what you’d expect from people living at the top of the heap under the status quo. Scalia’s question, “Who know what would come of it?” makes a lot of sense from his perspective. But for the millions of citizens who are not thriving and not treated fairly under the status quo, that “Who knows?” includes at least the possibility of a better deal than they are getting now.
The possibility of a convention of the states was added to the Constitution by the founders in anticipation of a time when the national government wouldn’t be giving satisfaction. It was to be a peaceful, orderly, thoughtful process of refreshing American democracy and giving citizens a more direct voice than voting does. That refreshing process has never happened, and America today feels the staleness. Perhaps the founders had the right idea, but the people in power, from Hamilton onward, have resisted it to keep power for themselves.
There seems to be a possibility that no one else has proposed or considered. Burger isn’t necessarily right in saying there is “[N]o way to effectively limit or muzzle” a constitutional convention. Congress couldn’t restrict it. But the delegates could enter into it with their own self-control. A fixed time horizon — say, 10 years — would guarantee that no sudden or urgent passions could carry the day. The participants in the convention could be limited to people not currently holding public office, or people not affiliated with a major political party, or any other filter that would admit only people motivated by the true public interest above all other considerations.
