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October 2016 Policy Study, Number 16-3


How To Restore Federal Fiscal Sanity: The State Legislatures Hold The Key


Should We Fear A Constitutional Convention? What Are The Safeguards?



Our opponents claim a constitutional convention might repeal the Bill of Rights, impose a communist system, or do some other horrendous damage to our Constitution.  Whatever you most fear, you will be told that a convention will do it.


Don’t be surprised if you are told a convention will cause cancer, hepatitis, and acne.


But what are the safeguards, and can we depend on them?


There are at least six safeguards on a federal constitutional convention – six solid reasons why a convention won’t harm our Constitution.  A convention is not likely to be held because Congress will want to write any proposed Constitutional Amendment.  But if a convention is held, these six safeguards ensure we need not fear it:


Safeguard #1: The states have the power to limit a convention to only one subject, and all the states’ Balanced Budget Amendment resolutions do this.


The most thorough study of this question was made by the American Bar Association’s Special Constitutional Convention Study Committee.  This was a two-year study by nine respected constitutional scholars, ranging from liberal to conservative.  In their report in 1974, they unanimously agreed that either the State Legislatures or Congress can limit a constitutional convention to only one subject.


“Since Article V specifically and exclusively vests the state legislatures with the authority to apply for a convention, we can perceive no sound reason as to why they cannot invoke limitations in exercising that authority …


“Congress has the power to establish procedures governing the calling of a national constitutional convention limited to the subject matter on which the legislatures of two-thirds of the states request a convention … 


“In summary, we believe that a substantively-limited Article V convention is consistent with the purpose of the alternative method since the states and people would have a complete vehicle other than the Congress for remedying specific abuses of power by the national government: consistent with the actual history of the amending article throughout which only amendments on single subjects have been proposed by Congress; consistent with state practice under which limited conventions have been held under constitutional provisions not expressly sanctioning a substantively-limited convention: and consistent with democratic principles because convention delegates would be chosen by the people in a election in which the subject to be dealt with would be known and the issues identified, thereby enabling the electorate to exercise an informed judgment in the choice of delegates.”


What did the Founders say about the states’ power to call a limited convention?


James Madison and Alexander Hamilton explained that Article V was intended to allow either Congress or State Legislatures to originate specific amendments, one at a time.  Their explanation supports the states’ right to limit a convention to proposing only one amendment.


“It, moreover, 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,” Madison, “The Federalist No. 43” at 286.


“Every amendment to the Constitution, if once established, would be a single proposition and might be brought forward singly . . . . and consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.”  Hamilton, “The Federalist No. 85,” at 572.


(Note: When there were only 13 states, Article V would have required nine states to meet the two-thirds requirement for calling a convention, and ten states to meet the three-fourths requirement for ratifying an amendment.)


But don’t some law professors and retired judges claim the states can’t call a limited convention?


Of course.  You can find law professors and retired judges on all sides of any issue, including this one.  Their conflicting statements are unimportant in view of the strong, clear statement by Madison and Hamilton (above) and the unanimous report by all nine members of the American Bar Association’s Special Constitutional Convention Committee (quoted above).


Has Congress recognized the states’ power to call a limited convention?


Yes, in at least two important ways.


First, Congress counts only resolutions for a convention on the same subject to determine whether the required two-thirds of the states have called for a constitutional convention.


The U.S. Department of Justice reported in 1986 that 39 States had filed constitutional convention resolutions with Congress.  Each resolution called for an amendment on one specific subject, but the various resolutions named different specific subjects.


Why didn’t Congress call the convention?  Any 34 states can call a convention under Article V.  If the States could call only a general, wide-open convention, or if the states’ specific limits on a convention could be ignored, then Congress would have been required to call the convention long ago in response to the 39 requests. 


But Congress and the States correctly recognized there were not yet 34 state resolutions requesting a convention on the same subject.  Therefore, Congress could not and did not call a convention.  Congress didn’t even consider calling one in response to these 39 state resolutions seeking different amendments.


Congress must continue this policy, because otherwise Congress would be forced to call a general convention that Congress doesn’t want and the American people don’t want.


Since both Congress and the States clearly recognize that to call a convention there must be two-thirds of the States asking for a convention on the same subject, it makes no sense to argue that the convention would not be limited to the single subject for which it was called.   


Second, Congress itself has often proposed one single amendment to the Constitution.  Some opponents claim that Article V allows only a convention to propose “amendments”, meaning two or more amendments.  But Article V applies the word “amendments” equally to Congress and to a convention.  Congress, by proposing only one amendment at a time, has repeatedly recognized that the Article V amending process can be limited to only one amendment – whether proposed by Congress or by a convention.


Do the states’ BBA resolutions limit a convention to proposing only this one amendment?


Yes.  All of the 29 state resolutions on this subject request only a Balanced Budget Constitutional Amendment.  They ask for a convention only “for the specific and excusive purpose” of proposing this one amendment, or very similar language.


At least 11 of the state resolutions expressly say the resolution is void and ineffective unless the convention is limited to proposing a Balanced Budget Amendment.


Of course, 34 State Legislatures could, if they wish, call an unlimited convention that could propose amendments on any subject. However, no Legislature is calling for an unlimited convention.  There is no public support for a constitutional convention unless it is strictly limited to one subject.


Safeguard #2: Congress also has power to limit the convention to one subject, and Congress has strong incentives to do this.


If two-thirds of the states request a convention, under Article V Congress calls the convention.  Congress must also provide for the election of delegates, the time and place of the convention, etc.


In the same legislation, Congress can limit the convention to only one subject.  See the American Bar Association study (above).  Congress undoubtedly would do so.  Congress has no desire for an unlimited convention that might, for example, propose term limits or limits on congressional pay.  Congress will be under heavy public and political pressure to limit the convention as specified in the states’ resolutions calling for the convention.  


Congress can require all convention delegates to take an oath that they will limit the convention’s work to the one amendment specified by the states.


Safeguard #3: The people can elect convention delegates pledged to consider only a Balanced Budget Amendment. 


Candidates for delegate can run on a pledge to propose only this one amendment.  There is no public support for any drastic revision of the Constitution, so delegates who make this pledge are more likely to be elected.


Also, since the states’ resolutions limit the convention to only this one amendment, most delegates will accept this limit as both a moral and a legal obligation.


Safeguard #4: Congress can refuse to send any unauthorized amendment to the states for ratification.


Article V provides that any amendment becomes part of the Constitution only “when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or other Mode of Ratification may be proposed by the Congress.”  Congress, not the convention, chooses the method of ratification.


If a convention would propose an amendment on a different subject, it would exceed the convention’s limited authority.  That would be good reason for Congress to refuse to send the unauthorized amendment to the states for ratification.


Safeguard #5: The U.S. Supreme Court can strike down any proposed amendment that goes beyond the convention’s limited authority.


If the convention were to propose an amendment on any subject other than a balanced budget, any of the 50 states could bring suit directly in the U.S. Supreme Court to declare the unauthorized amendment void.  Article III, Section 2 of the Constitution gives the Supreme Court original jurisdiction in all cases in which a state is a party.


Safeguard #6: No amendment can become part of the Constitution until it is ratified by three-fourths of the States.

This is the most important safeguard.  A constitutional convention, like Congress, can only propose an amendment, which must then be ratified by 38 states.


Assume the worst: a wide-open, irresponsible convention that defies its limited authority and proposes dangerous amendments, and both Congress and the Supreme Court somehow fail to use their power to stop these illegal amendments.


Even this imaginary situation would not endanger our Constitutions because of the ratification requirement.

Each amendment would die if only 13 states did not ratify it. Mere inaction by 13 State Legislatures would defeat any amendment.  The failures of the Equal Rights Amendment and the District of Columbia Voting Rights Amendment show how hard it is to get 38 states to ratify any controversial amendment.


Ask those who sow panic about the convention process: can you name even one State Legislature, let alone 38, that would ratify repealing the Bill of Rights, or a communist government, or any of the other horrors and hobgoblins you pretend to fear?


Could Congress bypass the State Legislatures by submitting a Constitutional Amendment to state conventions for ratification?


Article V requires Congress to decide whether to submit an amendment to State Legislatures or to state conventions for ratification.


To date, Congress has submitted all proposed Constitutional Amendments to State Legislatures, with only one exception: the amendment repealing prohibition.


All versions of the Balanced Budget Amendment now before Congress specify that it will be submitted to State Legislatures for ratification.  There is no congressional or public support for having it ratified by state conventions.


However, in the improbable event that Congress might submit an amendment to state-ratifying conventions, State Legislatures would still control the process.


State laws determine how many delegates would serve in a state-ratifying convention and when and how they would be elected.  Many states already have these laws in their statute books, first adopted in the 1930s for the conventions that voted on the amendment repealing prohibition.  Each State Legislature has full power to adopt or change its state law governing a state ratifying convention.


Even if state-ratifying conventions were used, would the people of 38 states elect conventions that would vote to destroy our Constitution?  That is what the fear-mongers ask you to believe –another of the “nonexistent constitutional ghosts” that the late Senator Sam Ervin condemned.


Safeguard #6 – any amendment must be ratified by 38 states – means in reality that no amendment can be adopted unless ratified by 38 State Legislatures.  However, even in the unlikely event that Congress would choose to send the amendment to state-ratifying conventions, this safeguard is equally strong.


Do these six safeguards reinforce each other?


Yes.  Any one of these six safeguards is ample to prevent any harmful amendment or any amendment on any subject other than a balanced budget.  The combination of all six safeguards powerfully protects the Constitution and the people and destroys our opponents’ wild claims.


Our opponents do not trust the American people or State Legislatures.  We concerned taxpayers believe the people and State Legislatures cherish and will protect our Constitution, using the safeguards that the Constitution provides.



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