One of the last things the North Carolina General Assembly did in the 2024 “short session” was to pass House Joint Resolution 151. The resolution’s short title is “Term Limits For Congress.”
What business is that of a state legislature? As every school child knows, the Supreme Court ruled in US Term Limits, Inc. v. Thornton (1995) that the US Constitution prevents states from “creating additional qualifications” for federal elected offices, including limits on how long someone may serve.
As seen in the bill’s text, however, the General Assembly is not trying to set congressional term limits; it is trying to get Congress to call for an “Article V convention” to propose a constitutional amendment to set congressional term limits. That raises a lot of questions.
What Is an Article V Convention?
So, what is an “Article V convention?”
I have found that, when confronted with a question about the Constitution, it is best to start by reading the relevant section of the Constitution. In this case, it is Article V (with the relevant parts in bold):
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.
State legislatures can propose constitutional amendments, with Congress apparently reduced to a ministerial role (Congress “shall” call a convention upon an application by 2/3 of the states). However, all 27 amendments added to the Constitution since 1791 started in Congress. There has never been an Article V convention. If the convention produces proposed amendments, they would have to go through the normal ratification process of approval by 3/4 of state legislatures or state ratifying conventions.
Will We Have an Article V Convention?
So, how close are we to having an Article V convention? Not close yet.
According to US Term Limits, North Carolina is now one of nine states that have petitioned Congress to call an Article V convention to propose an amendment requiring term limits for members of Congress. Convention of the States Action lists 19 states as having passed resolutions calling for a convention to “limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.”
There is considerable overlap between the two lists. North Carolina is the only state that has passed a term limits constitutional convention resolution that has not also passed the convention of the States Action’s broader resolution. That is 20 states, well short of the 34 states that must pass Article V resolutions before Congress is required to call a convention.
As seen in the figure below, except for centrist Wisconsin, only states on the political right have passed Article V resolutions for term limits. While longer, the Convention of the States Action’s list is still limited to conservative states. The progressive group Common Cause says that 28 states have called for an Article V convention for various reasons, still several states short of 34.
Progressives to the Rescue?
So, to make an Article V convention a reality, at least a few moderate or progressive states would have to join the effort. The problem is that progressive groups, like Common Cause, are dead set against a convention, claiming that it would unleash a host of calamities:
In short, an Article V Convention would be a disaster. It would lead to long and costly legal battles, uncertainty about how our democracy functions, and likely economic instability.
However, John F. Kowal, Vice President of the progressive Brennan Center, wrote in 2023 that the left is starting to warm to the idea of an Article V convention:
But now, a growing number of progressive scholars and reformers are asking whether it’s wise to take the convention option off the table completely, particularly given the dim prospects for change in a Congress that has dragged its feet on democracy reform. Speaking for the “convention curious,” Columbia legal scholar David Pozen asks whether a convention might offer progressive reformers “a chance to rethink our institutions and make them more democratic.”
So, an Article V convention could propose broadly popular measures, such as congressional term limits, that Congress would not.
Would There Be Any Guardrails for an Article V Convention? Who Would Set Them?
As previously mentioned, Congress appears to have a ministerial role of simply doing what it is told once 2/3 of states have applied for a convention (“Congress… shall call a conventioconventionosing amendments”), although there is some disagreement on this. As a 2016 report from the Congressional Research Service (CRS) sumerizes, Congress would have some role in setting the time, place, and nature of the convention since that could not be set by individual states.
As noted in the CRS report, some of the other questions about an Article V convention, to be determined by Congress or state legislatures, include:
- How Will States Be Represented? Will each state delegation get one vote, will states be represented by population, or will there be some sort of compromise like the electoral college? The originalist view would be for one vote per state. The Framers themselves had that in mind since they were part of the Philadelphia Convention of 1787 when they wrote the Constitution. If they wanted future constitutional conventions handle state representation differently, they would have specified something different than what they experienced.
- How Many Delegates Can Each State Send? The number of delegates a state sends does not necessarily have to match the number of votes a state has. While some states may want to send hundreds of delegates to help lobby other delegations, there would have to be some limit on delegation size to match the physical limitations of wherever the convention meets.
- Would Territories or the District of Columbia Be Represented? The orginalist answer would be “no.” The United States possessed territory outside of state borders, which Congress made into the the Northwest Territory during the course of the Convention of 1787, but that territory was not represented.
One of the more common lines of attack against an Article V convention is the so-called “runaway convention.” The idea is that convention delegates could brush aside any restrictions placed on them by Congress or state legislatures, and proceed to radically alter the Constitution. Such a move is not likely to succeed, if for no other reason than the diversity of the convention delegations. An Article V convention is unlike to be populated by disciplined cadre of actors with a strict agenda beyond what the legislatures that sent them proposed.
The ultimate guardrail against a runaway convention is that any proposed amendment an Article V convention would produce would have to be ratified by 38 states. If conservatives dominate the convention, for example, several progressive states would have to get on board for its amendments to be ratified.
If you added all the red and purple states together, you would get about 34. You would still have to get at least four of the following states to approve: Maine, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Maryland, Delaware, Illinois, Colorado, New Mexico, Washington, Oregon, California, and Hawaii.
Obviously, amendments from a progressive runaway convention would have an even harder time passing.
An Article V Convention Coming Soon to a Constitution Near You?
North Carolina is now officially onboard the Article V convention train. However, we appear to be at least several years away from our destination, if we ever get there. If we do arrive, the questions considered here, among others will have to be addressed before convention delegates can start considering amendments.
