A Dual Track for Article Five Amendments

I spent much of last week in the Birch Bayh Archives researching my next article and book. Over the next few weeks, I'm going to talk what I found there and reflect on some themes as I start sifting the material.

Let's begin with a little nugget. When the Direct Election Amendment was under consideration in 1969 to abolish the Electoral College, language was drafted in the Senate Subcommittee on Constitutional Amendments providing for a three-year time limit for ratification by state legislatures. But then the draft said that if the proposal was not ratified by enough legislatures within three years, Congress could submit the proposal to state conventions and they would have four years to get their own three-fourths tally ratify.

This was a clever idea. You still have what is now the standard seven-year time limit. But the proposal gets two separate bites at the apple. If the proposal was not overwhelmingly popular, the convention option can kick in to provide for fresh and focused elections on what would be a more difficult or controversial issue in at least some states. But only if Congress triggers that machinery--perhaps a future Congress would not be keen or would see the handwriting on the wall.

Maybe this suggestion was too clever or complicated to be put into the final draft --I'm not sure yet when it didn't make the cut. One thing I am sure of is that this sort of proposal would be constitutional under Congress's Article V powers and precedents.