No constitutionalamendmentshave ever beenenacted underthe nationalconventionmethod becausetwo-thirds of the states willnever apply for aconvention.
government entity from having a veto overthe passage of an amendment. While Con-gress is given the authority to proposeamendments, the convention method al-lows the nation to bypass Congress andenact amendments that would constrainCongress’s powers. Similarly, while the statelegislatures can ratify amendments, they might choose to reject amendments thatconstrain their powers. Therefore, the Con-stitution allows Congress to select for rati-fication by state conventions, which wouldhave different interests than the state legis-latures.
Statements made at the Founding sup-port this interpretation of the amendmentprocess. George Mason argued at the Phila-delphia Convention that “[i]t would be im-proper to require the consent of the Natl.Legislature, because they may abuse theirpower, and refuse their consent on that very account.”
Similarly, James Madison wrotein the
Federalist No. 43
that Article V “equally enables the general and the State govern-ments to originate the amendment of errors,as they may be pointed out by the experienceon one side, or on the other.”
The convention method thus appearsto have been designed to prevent Congressfrom having a veto over potential amend-ments. Under this method, two-thirds of the state legislatures can bypass Congressby applying for a constitutional conven-tion. The convention has the job of pro-posing a constitutional amendment, whichthen has to be ratified by three-quarters of the states. But this constitutional amend-ment method has never been used. The na-tion has always relied on the Congressionalproposal method.
The reason for the lack of use of the na-tional convention method is that it does notwork. It is broken. It is not merely that noconstitutional amendments have ever beenenacted under this method, it is also thatthere are strong reasons to believe that two-thirds of the states will never apply for a convention. I now turn to examining thosereasons in detail.
Defects of theConvention Method
Now that I have briefly outlined the na-tional convention method, we are in a posi-tion to discuss the various problems withthe process. These problems include coor-dination difficulties, the risk that Congresswill impede the process, the possibility of a runaway convention, and, most important-ly, the ineffectiveness of the process. Signifi-cantly, these different problems largely havea single source: uncertainty—uncertainty about what the law requires and uncertainty about the actions of the relevant political ac-tors.
Coordination and Congressional Power
One serious problem relates to coordi-nation among the states when they are ap-plying for a convention. A state seeking a limited convention must decide on whatsubject to apply for one. One state may callfor a limited convention on a certain subjectonly to find another state calling for it on a marginally different subject. It may be diffi-cult for the states to coordinate their appli-cations so that they match. The state legis-latures must also coordinate on whether toapply for a limited or unlimited convention.Coordination is also needed between thestates and Congress. Even if the state legis-latures all apply for a limited convention,Congress might conclude that the limitedconventions are unconstitutional and there-fore treat the applications as invalid. A second problem derives from the po-tentially significant role that Congress playsin the national convention process. Becausethe national convention method does notrequire the approval of Congress to proposeor ratify an amendment, Congress would belikely to oppose the amendments proposedunder this process. One way that Congresscan act against such amendments involvesthe state applications for conventions. If dif-ferent states apply for limited conventionscovering marginally different subjects, thenit is quite possible that Congress will use its