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.
