CBA Record May-June 2023

In the late 1890s an “amendment fervor” took place, with Nebraska in 1893 passing an application for an Article V convention, the first in more than 30 years. Several states followed, but despite being within one state of a convention, the convention was averted. However, that movement did influence Congress to act. From 1913 to 1920, four amendments were ratified: XVI (federal income tax); XVII (direct election of senators); XVIII (prohibition); and XIX (women’s right to vote). The Progressive Movement would be the busiest period in the amendment process, when, during the years from 1893 to 1916, “the states passed a staggering 107 convention applications.” Senator Bayh, while on a subcommit tee in the Senate, wrote the provisions that became the 25th (presidential succession) and 26th (18-year-old vote) amendments. The authors present the reader with some shocking information, including that “Congress has not successfully pro posed any new amendments since 1971.” However, as in the late 1800s and early 1900s, calls for constitutional conven tions have increased again, the last serious effort being in the late 1960s, when the convention vote fell two states short. The authors raise fears of an unchecked convention and provide examples of a convened model or test run convention and possible outcomes. The scenarios should concern us all in these hyper parti san times. They include the possibility of “new state authority to veto federal laws, onerous federal spending limitations that would eviscerate most national policy, and a complete restructuring of the coun try’s lawmaking and regulatory powers.” Some of these outcomes might come our way via the Supreme Court, but a new constitution does not sound like the blue print to keep the republic. The authors offer some revisions to Article V that might make it a vehicle to address changes without the fear of a runaway convention or a Congress bent on “amendmentitis” (the authors’ word). This book is a worthy read to learn how we might make sure the Constitution is not in jeopardy.

SUMMARY JUDGMENTS

REVIEWS, REVIEWS, REVIEWS!

The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It By Russ Feingold and Peter Prendiville

Hachette Book Group (2022) Reviewed by Daniel A. Cotter

A rticle V of the United States Constitution provides two meth ods to amend the 233-year-old document: the first is when two-thirds of both the House and Senate propose such amendments; the second is by convention application of two-thirds of the states. To date, the convention route has never been utilized, despite efforts at various times to encourage states to do so. Although some have asserted that limits could be placed on how a convention of the states would operate, the reality is that no one knows. However, the fear is that a states’ conven tion would substantially rewrite the Con stitution, and not necessarily in a way that leads to progress. In this book, former Senator Russ Fein gold, who is President of the American Constitution Society, and Peter Prindi ville, a legal scholar, examine Article V’s history and the current efforts by some to convene a meeting of the states. Article V, they say, “has often been seen as an afterthought.” Part of the reason is that in our nation’s history, “more than 11,000 amendments have been proposed to Congress, [but] only 33 have been sent to the states for approval and 27

ultimately ratified.” With respect to the convention route, there have been “the submission of at least 445 applications by state legislatures since 1789.” Like many compromises in our nation’s governing document, the final Article V language was drafted in part to address Southern concerns about slavery. An out right convention model was rejected, as John Rutledge from South Carolina “was concerned that the amendment power would be used by nonslaveholding states to remove the fugitive slave clause… and the provision ensuring the continued importa tion of slaves to the southern states.” The version of the amendment pro vision in the final Constitution and the fact that the document could be changed contributed in large part to George Wash ington’s decision to support the Constitu tion. Without his support, it is doubtful others would have done so. The authors describe the history of the actual amendments in an interesting way. The 11th and 12th were the first to be approved after the Bill of Rights, referred to as the “Hamiltonian repairs.” The next three were the “Second Founding” and post-Civil War, 60 years later.

Daniel A. Cotter is Attorney and Counsel at How ard & Howard Attorneys PLLC, a member of the CBA Record Editorial Board, and Past President of the CBA.

42 May/June 2023