A Constitutional Convention?

An unlikely and almost certainly inefficacious possibility.

Back in the middle of last month, the NYT asked about A Constitutional Convention? Some Democrats Fear It’s Coming. The piece is mostly, in my view, an excuse to write something dramatic. The premise is predicated on the fact that one of the routes to amend the US Constitution, as per Article V, is for a convention to be called by 2/3rds of the states. The textbook version of this power is that such a convention would be called for a specific reason, and if one looks at the various examples cited in the piece, that is how state legislatures have largely approached the issue.

Some examples:

The list reads like a chronicle of generational concerns. In the early 20th century, more than 20 states wanted to insert anti-polygamy laws into the Constitution. In 1949, six states wanted to create a “world federal government.” Many of those applications remain active.

In more recent decades, some states have sought to install a balanced budget requirement for the federal government or give the president line-item veto authority.

[…]

Many of California’s seven calls for a constitutional convention relate to fairly mundane topics such as campaign finance reform and motor vehicle taxes. California is also among the six states that wanted to create a world federal government, a request that remains on the books.

Still, the reality is that the text is unclear on process.

The founding fathers set almost no rules governing how such a constitutional convention would work. Article V of the Constitution says that the document can be amended if legislatures in two-thirds of states — now 34 out of 50 — agree to convene for the purpose. But it does not set guidelines for how the gathering would function. If the convention produces a proposed amendment, the change would still need to be ratified by three-fourths of the state legislatures.

[…]

The founding document does not say whether 34 states need to agree on the specific amendment topic or whether signaling that they want a convention for any reason is enough to trigger proceedings. There is no explanation of whether each state at the convention would get one vote or more, whether topics not on the agenda can be raised, whether lobbyists or special interest groups could participate, or who would referee disagreements. Constitutional scholars are unclear how even the most basic questions would be resolved.

That bolded part is quite important and is why even if a convention were called, it would be unlikely to produce anything that would be implemented. The math makes not only calling a convention unlikely, and it is even more unlikely that any amendments proposed by such a group would be approved.

Following last month’s election, 28 state legislatures will be controlled by Republicans, 18 by Democrats and the rest will be split, according to the National Conference of State Legislatures.

The drama surrounding the issue requires what I think is a problematic interpretation of Article V, which is that any request over time can sum to the 2/3rd threshold. I have always thought that such a convention would be called only if there was a specific request made by 2/3rds of state legislatures within a relatively contiguous timeframe. This comports with the examples noted above.

However, other interpretations exist.

More than 34 states appear to have standing requests to change the Constitution, some dating back more than 150 years, according to the Article 5 Library, a bare-bones website that scholars pointed to as the best known repository of applications to change the Constitution.

[…]

Erwin Chemerinsky, the dean of the University of California, Berkeley, School of Law and a constitutional law expert, called the concerns of Democrats “very legitimate.”

Given that the standing requests are over a vast amount of time and in regards to a variety of unrelated issues, it seems to me that it is unreasonable to assert that they sum to a unified call for a convention. Even if they did, states could withdraw their support and make the issue moot.

Certainly, a “runaway” convention (one that picks up full-blown constitutional change as opposed to focusing on a specific amendment or topic) could be a dangerous proposition, but the 3/4th hurdle for ratification of those changes is a significant bulwark against change. As such, it might be worthwhile to have such a meeting so as to put on display the deep visions of political actors within American politics. It could be fascinating and revealing to witness such debates.

However, I think the clear likelihood is that this is just a bunch of speculation to give reporters something to fill column inches as the year came to a close.

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Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a retired Professor of Political Science and former College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Michael Reynolds says:

    The Second Amendment would be in jeopardy, and could be rewritten to be reasonable and in-line with popular opinion. That should chill the right-wingers.

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  2. steve says:

    The Constitution was written in a totally different world. Rationally, we absolutely should have a rewrite. Absent one we have SCOTUS telling us they are making decisions because they, and only they, have the ability to discern what the writers meant when they wrote the Constitution. Coincidentally, the intent they manage to discern just happens to match their political beliefs. Really, we might as well be using chicken entrails. However, given our polarization it just isn’t going to happen.

    OT- In a discussion about populism someone asked if Hitler, Stalin, Mao were populists. I think they all grabbed onto populist themes at one time or another maybe even meeting some criteria to be called populists but long term they would not be called populists. Make sense?

    Steve

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  3. Sleeping Dog says:

    To back up with what @Michael Reynolds: said, I’ve heard conservatives have reservations about a Constitutional Convention because they fear that the 2nd amendment would be if not eliminated, significantly narrowed in scope.

    There is a question as to whether any proposed amendments to be voted on by states, would be individual votes or would it be an amalgam of several amendments with the vote being on the package. Could a legislature(s) choose not to vote itself, but pass the responsibility to the voters?

    The only possible way a CC could happen if the Congress put forth enabling legislation that followed the normal legislative path. But that won’t happen either.

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  4. Joe says:

    @Michael Reynolds and Sleeping Dog: A Constitutional Convention would be every political interest group holding a gun to the head of every other political interest group. It would be chaos.

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  5. Kathy says:

    IMO, if 2/3 of the states had majorities favoring some kind of amendment, then surely large numbers, if not majorities, in most other states would favor it as well. If so, then Congress should have little trouble passing it, and it would stand a good chance of ratification.

    In the context of the times, the convention provision was probably a sop to the states, to convince each state they could stand up to the big, bad, national government. In the context of our time, it seems redundant.

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  6. Michael Cain says:

    My own relatively long-held belief is that there won’t be a Convention called until 38 of the states have already agreed on a de facto partition.

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  7. Scott F. says:

    My first thought upon reading of this idea of a Constitutional Convention was that the obstacles would prevent any meaningful changes of law, but it might otherwise be useful to have the public debate. I take it that’s where you are, Steven:

    As such, it might be worthwhile to have such a meeting so as to put on display the deep visions of political actors within American politics. It could be fascinating and revealing to witness such debates.

    Then, I reflected on whether there were such things as “deep visions” that could possibly be displayed by the current political actors within US politics and I’m stymied.

    We live in a time of heightened demagoguery. Our last election demonstrated that a party can win despite (or because of) mendacity and the vilification of more than half the country. The country has ample “generational concerns” that we are past due addressing (@Michael Reynolds names just one), yet what passes for vision on potential aligned solutions can be no deeper than a sound bite or a post on Xitter.

    I am a technocrat in the desert. Unfortunately, I don’t see how we can even imagine our politics grappling with systemic, generational issues when expertise and shared problem solving are held in contempt by so many of the citizenry. I’m convinced that the best possible outcome of the coming Trump term is large scale failures of the Oversimplified Solutions to Complex Issues that can be inescapably attributed to the Trumpist brand of Only a Populist Strongman Can Fix It. I fully admit this is grand wishcasting, but in order for the “deep visions” of smart technocrats to rise again, boorish populists have to be left holding the bag in a big way.

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  8. Not the IT Dept. says:

    We’re too fragmented a country now to pull something like this off. The God-Botherers would put so much pressure on politicians to make the constitution Bible-friendly that we would wake up some morning in a theocracy that Iran would envy. I have no faith that politicians at any level of government would be able to stand up for the common good. And this time we won’t have Franklin, Adams, Jefferson and the other Deists to fight off the religious fanatics.

    Also: there’s nothing in the current 2nd amendment now that prevents us from having the kind of gun control the public has indicated they want; what we don’t have is the political will to put it in place.

    No, we’ll have to wait for a new generation of adults and I don’t see one on the horizon right now.

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  9. Mister Bluster says:

    The entire document would be in jeopardy.
    I have always consulted Notes on the Debates in the Federal Convention reported by James Madison, a delegate from the state of Virginia.
    Today I stumbled on another source. Notes of the Secret Debates of the Federal Convention of 1787, Taken by the Late Hon Robert Yates, Chief Justice of the State of New York, and One of the Delegates from That State to the Said Convention a far more condensed report of the proceedings compared to Jefferson’s.
    The first several paragraphs of Chief Justice Yates report remind me that while the meeting in Philadelphia in the Summer of 1786 was initially called so

    …that the articles of the confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution, namely, common defence, security of liberty, and general welfare.

    that goal was immediately scrapped and:

    Resolved, That a national government ought to be established, consisting of a supreme judicial, legislative, and executive.

    This led to an entirely new Charter that replaced the “Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.”
    As far as I can tell any attempt to convene a Constitutional Convention could end with the entire
    US Constitution and its current amendments being shredded and who knows what to replace it.

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  10. just nutha says:

    @Scott F.: Interesting. I initially read your cited passage as “deep divisions.” Rereading, I’m at a quandary but would be interested if Dr. Taylor expanded on the nature of what deep visions exist.

  11. just nutha says:

    @Mister Bluster: Funny you should mention the “US Constitution and its current amendments being shredded and who knows what to replace it.” Based on my best understanding, that is the goal of at least one organization calling for a “new constitutional convention.”

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  12. Mister Bluster says:

    @just nutha:.. “new constitutional convention.”

    If Trump intends to be “dictator for a day” on January 20 I wouldn’t put it past him to use that one day to declare himself “dictator for life”.
    He won’t need no stinkin’ convention.

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  13. Andy says:

    Ah yes, we’re in for a lot of dumb catastrophizing in the next few years (and probably after).

    This particular idea is particularly dumb. We are a diverse and highly politically divided country. The notion that 2/3rds of state legislatures would agree, much less be able to coordinate, to make this happen is laughable.

    As @Kathy notes, if the country as a whole had super-majority support for any Constitutional change, then Congress would act in the context of the country having that super-majority support – as Congress has done since 1787, including for changes from minor dust-ups like the Civil War.

    This provision is one of many that are primarily intended ensure federalism and provide a safeguard against federal overreach. The situation in the USA is – and has always been – one where that safeguard isn’t and hasn’t been needed, and concerns among some Democrats that there is some threat here because a few Republicans are stupid is a useless and counterproductive exercise.

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  14. Michael Cain says:

    @Andy:
    As an example, the 17th amendment (direct election of Senators) was finally passed by Congress and sent to the states because (a) more than half of the states had passed some sort of end run implementing direct election, (b) the Supreme Court had become afraid to declare those unconstitutional, and (c) all but a handful of states had called for a convention and both Congress and the Supreme Court were terrified of what might come out of one.

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  15. al Ameda says:

    @Andy:

    The situation in the USA is – and has always been – one where that safeguard isn’t and hasn’t been needed, and concerns among some Democrats that there is some threat here because a few Republicans are stupid is a useless and counterproductive exercise.

    To be fair, such safeguard(s) haven’t been thought to be needed, that is, until Trump showed us that norms and guardrails can be ignored without legal consequence. Just a few weeks ago 49.8% of the voters didn’t think it was all that important that Trump blew through nearly all norms, guardrails, and ‘safeguards’ and came within inches of stealing the 2020 election.

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  16. Mike Kapic says:

    This is not about one political party, but rather D & R American patriots who believe that our Freedom Charters are in jeapordy and want to defend them to the end. This is not about policy, but about a cracked and fissured constitutional foundation. We have 400 years with over 650 little-known and recorded conventions that helped build America. The states in convention created the Constitutional republic we call America today. Trust your states because they are the only ones who can save our rear ends! Federalism to the rescue. For proof, see a 5 min overview video of the last convention and the brief book that illustrates that the operation is not rocket science. It is WELL known. Learn your American HISTORY before its too late!

  17. Jim T says:

    Partisan calls for an Article V Convention will never succeed, the country is too divided. There is a path to an Article V Convention. Thirty-four states making the same non-partisan call that includes a framework for running the Convention could be successful. The framework would address the reasonable concerns with a Convention.

    onlywayto34.com

    The Constitution needs updating. This is the only path to an Article V Convention.

  18. Andy says:

    @Michael Cain:

    That kinda proves the point. State action is a backstop, one that has never been actually used.

    @al Ameda:

    Trump has nothing to do with this discussion and is yet another distraction.

    For this to happen, you need 2/3 of state legislatures to affirmatively decide to try to change the Constitution. Trump violating norms has zero bearing on that not least of which because the office of the President is not part of the process.