The Dirksen Amendment and the Article V Convention Process

This article will concentrate on the legal issues facing Congress in the current effort to call a constitutional convention. Because all of the previous amendments to the Constitution were proposed to the states by a two-thirds vote of both Houses of Congress, the issues raised in the present situation have never been resolved. The appropriate course of action for the national legislature is especially in doubt. An attempt will therefore be made here to focus on proper decision-making by Congress in resolving these constitutional issues.

The role of the judiciary will be considered only incidentally, since, as will be seen, the primary obligation to decide questions raised in the amending process rests with Congress. It is also possible that the final dispositive power on this subject rests effectively in Congress because the courts may consider all or most of the issues raised in the amending process nonjusticiable political questions. Nevertheless, "in the exercise of that power, Congress . . . is [still] governed by the Constitution.'' The following discussion of constitutional principles should, therefore, be considered as an appropriate guide for consideration by Congress when that body undertakes to perform its obligations respecting an article V convention.