The Question of Safety: Are There Adequate Rules and Enforceable Limits on Article V Conventions?
One of the most discussed contemporary aspects of the constitutional amending process is the still untried provision for an Article V convention. Stimulated by earlier calls for a convention to overturn the Supreme Court's reapportionment decisions, the American Bar Association (ABA) issued an influential report on this subject in the 1970s, 1 and there have subsequently been numerous articles and several books on the issue, 2 as well as a number of unsuccessful attempts to pass legislation to deal with this contingency. 3
Although questions involving the convention are legion, a number of basic issues appear responsible for most of the controversy. These include the length of time that petitions for a convention should remain valid, how similar these petitions must be for them to be aggregated together as a single call for a convention, and whether states may call a limited convention or whether a convention would necessarily be at liberty to consider and propose anything. This last question is linked, in turn, to the key question as to whether a convention would be a safe option or not. Specifically, could a convention be limited by one or another institution of government, or would it be sovereign? 4
The temptation in this area, as in amending matters generally, is to treat each issue separately; ultimately, no matter what framework is adopted, some questions simply require a prudent choice among alternatives, none of which is compelled by any single principle or set of principles. On some of the major issues, however, it is both possible and desirable to address such questions within a larger context. Here the earlier analysis in this book