Saturday, January 9, 2016

Article Five of the U.S. Constitution

Since calls for a national convention are increasing, its worth looking at Article Five of the U.S. Constitution. It'll give us context as well as an indication of whether Abbott's proposals are likely to pass.

Here is the article in its entirety:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

The article mentions "the first and fourth clauses in the ninth section of the first article" - it cannot be amended prior to 1808. Here are those two clauses:

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

For background:

- The Founders' Constitution: Article 5.
- Legal Information Institute: Article 5 Annotations.


The National Archives provides additional information on the Constitutional Amendment Process here. It points out that "None of the 27 amendments to the Constitution have been proposed by constitutional convention," so the governor and his compatriots are charting new ground. Never the less, at some point proposals have to be cleared by 3/4ths of the states, which is a very high hurdle to clear. If 13 states disagree with any of the proposals, they die.