A technical amendment to the Constitution

Alexander Hamilton, in the final Federalist Paper, number 85, discussed Article V, and the amendment power.  He tried to assure the people of New York that there would be a means for the States to control the federal government, should it ever encroach on the power of the States.  “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachment of the national authority.”

But Hamilton was wrong.  The national authority, or the federal government, has repeatedly encroached on the power of the States.  But in the 229 years since the Constitution was ratified, the State legislatures have never met in Convention to consider proposing a Constitutional amendment.  Congress has proposed 33 amendments, 27 of which have been ratified.  The States have proposed none.

This is because of a technical flaw in Article V.  For Congress to propose an amendment, a quorum, or majority, must meet to convene a session.  Then 2/3 of each house must vote in favor of the proposed amendment.  But the States must achieve a 2/3 quorum just to convene.  Then a simple majority is needed to vote for the proposal.

This is, obviously, backward.  The States should need only a majority of their number to convene an Amendment Convention, and then 2/3 should be required to send a proposal out for ratification.  This fatal flaw has effectively rendered the States powerless to resist the relentless encroachments of the federal government.

The checks and balances in the Constitution prevent any one branch of the federal government from exceeding its authority.  The executive branch, or the President, can be checked by Congress, with its impeachment power.  Likewise the Supreme Court.  But the only check on the power of Congress is the amendment power given the States by Article V.  And that power has never been exercised, due to a drafting error.

The Framers knew from experience the critical importance of quorums.  The Annapolis Convention never formally convened, because a quorum of seven states was not assembled.  The Philadelphia Convention was scheduled to begin on May 14, 1787.  Washington and the other Virginians were there, but had to wait until a quorum of seven was achieved on May 25th.

So why does Article V require a quorum of 2/3 for a meeting of states to consider proposing an amendment?  Was the state power to initiate amendments made into a dead letter intentionally?

Highly unlikely.  All the evidence points to a drafting error.   The original Virginia Plan gave only the states the power to amend.  On September 10, 1787 Hamilton suggested that Congress also be given the power to initiate amendments.  Madison agreed, and offered an amendment to that effect.  According to Madison’s Notes, it was intended that Congress and the states would have equal power to amend.  That intention is unfulfilled, and that’s why we need a Fix Article V Amendment.

The 11th and 12th Amendments were technical in nature, not substantive.  In order to give life to Article V, and give the states the power to reform Congress, another technical amendment is needed.

Don’t look to Congress to empower the states by proposing such an amendment.  34 states will have to agree to do it.  If they do, the result would be profound.  If they decide not to do their constitutional duty, they will have no right to criticize Congress.

They will have decided to just go along for the ride.

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