Further Thoughts on Article V

Article V also allows for two thirds of the legislatures of the states to request a Convention to propose amendments, at which point Congress shall convene said Convention. Whatever amendments the Convention produces must then be ratified either by three quarters of the legislatures of the states, or by conventions in three quarters of the states, according to the preference of Congress.

Note how vague this language is, and how much it leaves open to argument. How shall a Convention be composed? Would it be one delegate from each state, or would larger states be represented according to their population? What about U.S. territories, or the District of Columbia? Would all members of Congress automatically be delegates, or not? Does the fact that Congress convenes the Convention mean that Congress gets to set the rules, or not? In either case, by what rules would a Convention consider alternative amendments, or propose amendments? And, despite the Constitution being quite clear that it's Congress' choice, what if the Convention disagreed with Congress regarding how to ratify its proposed amendments, with one preferring ratification through state constitutional conventions but the other through state legislatures? What kind of vote in Congress would be required to sort that out? It's fairly easy to see, then, why the first path became the default: the second path is an invitation to a profound and wide ranging fracas, if not political Armageddon.

But why, one further wonders, would the delegates to the Philadelphia Convention be so vague, so unworkmanlike in their draftsmanship, so willing to court disaster? Thinking about it, the answer is pretty obvious: the Philadelphia Convention, for the most part, disdained democracy. Their addition of a democratic option to making amendments was, for them, almost a throw-away, a dare to history. "If you believe in democracy, here's what you'll get!"

Recall that neither the Declaration of Independence, nor the Constitution, nor the Bill of Rights, nor any subsequent amendment, uses, anywhere, the word "democracy." Indeed, if we look through James Madison's notes from the Philadelphia Convention the word "democracy" almost never appears, and then mostly in an unfavorable light. The men in Philadelphia were thinking less, it seems, about how a federal government might make public policy than about keeping the states bound together in a union, and about that union's independence. So they stacked the deck in favor of the establishment. That's understandable. But it's also almost miraculous that they could imagine a throwaway might, in a time of extreme distress, become necessary.

It won't happen tomorrow, but public unhappiness with an illegitimate government — that is, a government that always protects the interests of its corporate masters before the interests of the public at large — must eventually boil over. Here we have a channel for such discontent, just waiting to be used.