Even Constitutional Conventions are Limited

Independence Institute

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A common tactic among opponents of an amendments convention is to label it a “constitutional convention,” and then claim that a constitutional convention is inherently unlimited. The fact that courts have repeatedly limited constitutional conventions seems not to have occurred to them.

New scholarship by Roman J. Hoyos, a law professor at Southwestern Law School in Los Angeles, traces the growth of the legal understanding that even a constitutional convention can be limited. His publication is entitled Article V and the Law of Constitutional Conventions, and it appeared in the British Journal of American Legal Studies (pdf).

Professor Hoyos gives credit to John Alexander Jameson, the leading 19th century convention scholar, as playing a pivotal role in the understanding that constitutional conventions can be limited. Jameson distinguished constitutional conventions—which are subject to law and legal restrictions—from unlimited “revolutionary conventions.” Examples of the latter were the “committees of correspondence” set up in states just before and during the American Revolution.

Professor Hoyos discusses some of the many judicial opinions that have declared limits on constitutional conventions.

He then shows that an Article V convention has even less scope than a constitutional convention. One reason is that an Article V convention’s power is limited to “proposing Amendments.” Amendments are narrower than general constitutional revision, which most constitutional conventions are empowered to do. He points out also that an Article V convention’s power terminates once it has turned its proposals over the Congress for referral to the states.

Professor Hoyos credits a historian named George Parkinson with labeling a convention designed to circumvent a legislature, a “circumvention convention.” An Article V convention is of that species, because it was designed to enable state representatives to propose amendments without Congress.

Toward the end of the article Professor Hoyos lists multiple ways in which limits on an Article V convention can be enforced.

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