For most, the talk of constitutional conventions is the stuff of history, an intellectual concern not applicable to modern political reality. However, a generational push by predominantly-conservative state legislatures has, slowly but surely, made the theoretical notion of a modern rewriting of the United States’ founding document quite possible, indeed.
The United States is on the verge of a constitutionally-induced nightmare scenario, but hardly anyone is paying attention.
Article V of the U.S. Constitution details the amendment process:
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…
There are two tracks a constitutional amendment can take: authorization via congressional action and authorization via constitutional convention.
The former is the more popular route. Every constitutional amendment, from the First Amendment, ratified in 1791, to the 27th Amendment, ratified in 1992, has been first approved by Congress. No amendment has ever been first approved by a constitutional convention.
However, that doesn’t tell the full story. Many amendments, such as the 17th and 21st, were passed by Congress in fear of a state-called convention. In these cases, the federal government moved to pre-empt a constitutional convention, which would wrest power away from itself and hand it to the states — all while risking what legal scholars call a “runaway convention,” to boot.
You see, no one really knows whether an Article V convention can be called to address one specific issue, or, due to the broad declarations of the determining clause, such conventions are legally allowed to approve whatever amendments they desire.
As a student of this area of law, I tend to side with those who believe an Article V convention cannot be restrained through prior outside dictates. In my opinion, only the convention itself can approve the limits of its own function.
A “runaway convention” is one in which the convention, called for one specific purpose, proceeds to branch out into unauthorized areas. It’s a real worry — one that many don’t take seriously enough. And there’s precedent for its occurrence.
In 1787, delegates from the original 13 states gathered in Philadelphia to amend the Articles of Confederation, the United States’ first constitution. Rather than proceed according to the rules of amendment laid down in the Articles, the convention, under its own authority, approved an entirely new constitution. That document is still in use today, over 230 years later.
So the only time our country has held a limited constitutional convention at the federal level, it turned into a “runaway convention.” The success rate of limiting a federal convention before it occurs is a solid 0 percent.
And yet, as of the publication of this article, we are perilously close to the calling of a new constitutional convention. In 2017, Wisconsin became the 28th state to call for an Article V convention for the purpose of proposing a balanced budget constitutional amendment. (You can track the amendment’s progress here.) With affirmative calls from two-thirds of the states — that is, 34 of 50 states — Congress must allow for a constitutional convention.
However, it’s unclear whether these current calls for a convention are valid. Many of the measures approved by state legislative action call for a convention under the premise that such a gathering may be limited in scope. If the convention cannot be restrained as such, these states demand their calls be declared null and void.
Many states also put definitive time limits on their calls for an Article V convention. For example, a May resolution passed by the Missouri General Assembly calls for a convention to approve congressional term limits, but only if the convention is called within five years.
What’s more, even an unlimited constitutional convention isn’t wholly sufficient to change the supreme law of the land for good. Article V, as mentioned above, requires three-fourths of the states to ratify any proposed amendments. A new constitution would need to be ratified through broad, bipartisan agreement. That’s not likely to happen in today’s highly polarized political climate.
However, the tricky thing with constitutional conventions is that there really are no legal limits, merely presumed normative protocols. After all, the convention that approved our current Constitution did not follow the ratifying procedures of the Articles of Confederation, the constitution then in affect. Who’s to say that a new constitutional convention wouldn’t act likewise, approving a ratification requirement of only, say, one-half of all the states? What havoc would be unleashed if half of the states did ratify such a constitution, but several other states declared it illegitimate?
A single political party, if determined enough, could conceivably muscle such an effort through the system. Sure, there would be a public outcry, but some theorists believe such a system could be legally legitimate — or at least as legitimate as our current Constitution, anyway, which seems to be getting along just fine.
We should tread lightly when considering a new constitutional convention. Yes, our system is antiquated. There are many amendments that could improve the proper functioning of our strained democracy — fixed term-limits for Supreme Court justices, nationwide ranked-choice voting and campaign finance reform, to name a few. But our system is more fragile than it seems. Better to use the chisel if we can, rather than resort to the temptation of the sledgehammer in the corner.
American jurisprudence stems from the common law tradition, in which prior judicial decisions serve as precedent for future cases. All of this would come crashing down if the states were to approve a new constitution. We’d lose hundreds of years of tried-and-true decision-making, the literal trial and error of numerous generations.
If we start from scratch, there’s little guarantee of a better result. The risk of societal backsliding is simply too great. ■