The Convention of States: Article V’s Forgotten Check on Federal Power

Every few years, somebody rediscovers Article V and mentions a convention of states. Official Washington reacts as if someone had proposed abolishing the Constitution on the National Mall. The reflex is telling. The permanent political class is terrified of the one constitutional mechanism it cannot control.

The Clause Washington Hopes You Won't Read

Here is the angle almost nobody takes. The fight over a convention of states is not really about the risks of a convention. It is about whether people who call themselves originalists actually believe the text when the text assigns power to state legislatures instead of to federal judges and bureaucrats.

I do. And if you believe the Constitution means what it says, you should too.

Article V creates two ways to propose amendments to the Constitution. Congress may propose them by a two-thirds vote in both houses. Or, and this is the part that gets ignored, when two-thirds of the state legislatures apply, Congress shall call a Convention for proposing Amendments.

Read that word again. Shall. Not may. Not if Congress feels comfortable. Not if the permanent political class grants permission. Two-thirds of the states, 34 of them, can force the issue. Congress has a ministerial duty to call the convention.

The text then requires that any proposed amendment be ratified by three-fourths of the states, 38 legislatures or state conventions, before it becomes part of the Constitution. That is the highest hurdle in the American system. A convention does not ratify anything. It does not enact anything. It proposes. The states dispose.

That is not a radical loophole. It is one of the most conservative procedures ever written into a frame of government.

An Originalist's Uncomfortable Choice

Here is where the argument gets uncomfortable for some of my friends.

We say judges should follow the text as written. We say the Commerce Clause cannot mean everything and nothing. We say the Second Amendment does not shrink because a judge finds it inconvenient. We say the Constitution is not a living document to be updated by five justices in a closed conference.

And yet many of those same people read Article V as if the convention clause were a typo.

If you are a textualist, you do not get to erase the phrase shall call a Convention for proposing Amendments because you fear the unknown. The moment you say, yes, the text grants this power to the states, but we should not use it, you have adopted living-constitution reasoning. You have decided that the document means what you want it to mean, not what it says.

Justice Antonin Scalia made the point throughout his career. Judges are not free to rewrite the Constitution because they find its outcomes inconvenient. The same logic applies to citizens and legislators. If we pick and choose which provisions of Article V to honor based on our comfort level, we have abandoned originalism and embraced a results-oriented approach that would make progressive legal theorists blush.

The Founders did not hide the convention mechanism in Article V by accident. They put it there on purpose, specifically because they knew Congress would never propose amendments limiting Congress.

Why the Framers Built the Escape Hatch

At the Constitutional Convention in 1787, George Mason refused to sign the finished document in part because the amendment process was one-sided. Mason's fear was straightforward. If the new federal government became oppressive, Congress would never propose amendments to reduce its own power. The states would be trapped.

The delegates answered him by adding the state-application convention route. The states were not to be passive subjects of the federal government. They were to be the principals. The federal government was the agent. Article V was the agent's leash.

James Madison explained the design in Federalist 43. He wrote that Article V 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. The key word is equally. The Founders did not intend Congress to have a monopoly on constitutional change. They intended the states to have an independent, co-equal route.

Madison made the broader point in Federalist 45. The federal government's powers are few and defined. The powers of the states are numerous and indefinite. The amendment process reflects that design. Washington gets one route to propose changes. The states get another. The states do not need Washington's permission to begin the process. That is federalism as a practical tool, not a slogan.

The "Runaway Convention" Objection, Steelmanned

The strongest objection goes like this. A convention might run away. Once delegates assemble, they might rewrite the entire Constitution, repeal the Bill of Rights, and centralize power beyond anything we have seen.

It is a serious fear, so let me state it fairly, then take it apart.

First, the text does not call a constitutional convention. It calls a convention for proposing amendments. Article V nowhere authorizes a body to write a new constitution. It authorizes delegates to propose specific amendments to the existing one. Anyone who tells you otherwise is reading the document the way the living-constitution crowd reads the Commerce Clause, by ignoring the actual words.

Second, the ratification firewall is real. Thirty-eight states must approve any proposed amendment. That is a supermajority more demanding than any modern electoral coalition can claim. An amendment that abolished the Bill of Rights would need 38 separate state legislatures, or state conventions, composed of elected representatives, to vote for their own disarmament. The idea collapses the moment you look at it seriously.

Third, the alternative is not constitutional peace. We are already living under a runaway government. Federal agencies issue rules with the force of law. Courts invent rights the text never mentions. Congress spends money the nation does not have and offloads hard choices to unelected boards. That is amendment by administrative decree. It happens without a single state legislature voting on the matter. The real runaway convention has been in session in Washington for decades.

If you fear centralized power, you should fear the system we have, not the constitutional procedure designed to correct it.

A Decentralized Check, Not a Central Plan

There is a deeper reason the Article V process is safe, and it draws on Hayek's insight about knowledge.

No central body, no convention, no Congress, no committee, can know enough to redesign a free society from the top down. The genius of Article V is that it does not rely on one central plan. It disperses power. A proposal must survive 50 state capitals, each with its own politics, its own voters, and its own legislators who have to answer to the people back home.

That is not a flaw in the process. It is the process. It forces constitutional changes through the one mechanism most likely to reflect the actual judgment of a free people: state legislatures that are closer to the citizen than Washington will ever be.

Hayek argued in The Road to Serfdom that central planning inevitably leads to lost liberty because no planner can possess the dispersed knowledge that a free economy and a free people generate spontaneously. The same insight applies to constitutional change. A centralized amendment process, one run entirely by Congress, would concentrate the power to define the rules of the game in the hands of the very people those rules are supposed to constrain. The Article V convention route breaks that monopoly and pushes decisions out to the states. That is the opposite of centralization. It is the constitutional equivalent of spontaneous order.

What a Convention Would Actually Propose

For all the anxiety, it is worth asking what a convention of states would realistically put forward. The applications already pending from state legislatures across the country focus on a handful of reforms that enjoy broad, cross-partisan support. A balanced budget requirement. Term limits for Congress. Restrictions on federal regulations that have the force of law without congressional approval.

None of those proposals abolishes the Bill of Rights. None of them hands power to a king. If anything, they would restore the constitutional balance the Founders designed: limited government, accountable representatives, and a federal bureaucracy reined in by elected officials rather than the other way around.

A balanced budget amendment would force Congress to do what every family and every state government already has to do. Live within its means. Term limits would end the permanent political class that makes a career out of expanding its own power. Regulatory reform would restore the separation of powers by requiring Congress to vote on major rules instead of delegating lawmaking to agencies no one elected.

These are not radical ideas. They are the modern expression of the same concerns that drove the Founders to include Article V in the first place. And the only way they will ever become part of the Constitution is through the state-driven process, because Congress will never propose limits on itself.

The Stakes

The convention of states is not a fringe idea. It is the Framers' emergency brake, and it is still sitting in the Constitution waiting to be used.

If we are serious about limited government, we have to be serious about the tools the Founders gave us to secure it. It is not enough to complain about federal overreach. It is not enough to hope the next election fixes everything. The Constitution gives the states a direct, peaceful, lawful way to force Washington back within its enumerated powers. We have spent two generations refusing to take it.

The next time someone tells you a convention of states is too dangerous, ask them what they think is happening right now.

The Constitution already contains the answer. The only question is whether we have the nerve to read Article V the way we claim to read the rest of the document. As written.