This new essay by Lawrence Lessig partially answers a question I had recently been pondering. That question was about whether it would be feasible (on paper) to do a constitutional convention through Article V (the one about how to amend the U.S. Constitution). It’s permissible but hasn’t ever been tried. Here’s the relevant part of that provision:
Article V: 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…
Lessig points out that this alternative route, which has never been used, isn’t actually all that special or worrisome. It’s not like a free-for-all that can just junk the whole document. A Constitutional Convention could only be convened by the formal request of 2/3rds of the U.S. states (34 now) and it could only propose amendments to the existing Constitution, which would then be sent back — just like Congressional amendments! — for approval by 3/4ths of the U.S. states (38 now). That last part is always the hardest, and this doesn’t change that.
That’s consistent with the interpretation posted on the U.S. Senate website’s page explaining different parts of the U.S. Constitution:
The Constitution also authorizes a national convention, when two-thirds of the states petition Congress for such a convention, to propose amendments, which would also have to be ratified by three-quarters of the states.
So, the national convention route is actually probably even more complicated to get it rolling, in that it requires all the cat-herding of more than 30 states be done twice over (once going in and once coming out), and then once it’s rolling it’s no easier or more dangerous than the usual amendment process.
The advantage it (potentially) has is that it circumvents the need to have members of Congress vote on specific amendments that might affect them or the special interests they favor. It would also be within the much stronger state-level tradition of public interest reform by direct democracy.
Interestingly, Lessig doesn’t address Article V’s provision for allowing states to create special conventions for ratification. He specifically — intentionally I assume — uses the more generic term “states” when discussing the ratification side, although he mentions legislative party control in passing. The likeliest format would be for the legislatures to vote up or down on the convention’s proposed amendments, just as they would for amendments from Congress, but it’s not required.
Let’s take a second look at Article V:
…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…
In case it’s unclear from that confusing grammar, that means Congress gets to decide (whether sending out its own amendment proposals or convening a convention to do the proposing) if the amendments are to be approved by state legislatures or special state conventions (which also can only vote up or down). Notably, this choice of “Mode of Ratification” has been specified in four of the more modern amendments. Section 3 of the 21st Amendment (proposed and ratified during the Great Depression) reads that the amendment must be:
…ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution…
Wikipedia notes that the 21st Amendment was the only one ever approved like that. Compare, for example, to the text of the 22nd Amendment, proposed in 1947 and ratified by 1951:
…ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States…
Similar text is found in the 18th Amendment (1919) and 20th Amendment (1933).
If Congress wanted to, it could create not only a national constitutional convention to propose amendments (if petitioned to do so first!) but also then order the states to establish State Ratifying Conventions to vote up or down on the suggested amendments. That could be good or bad, depending on your view of direct democracy or nearly direct democracy, since such conventions would be about one step removed from just putting the amendments directly on the ballot. (And in fact, I think a state legislature could probably conceivably declare the entire registered voting population to be a “convention” for the purpose of voting on an amendment and then hand it right over to the ballot for an up or down vote.) Only a few states already have provisions in place for how to handle putting together a ratifying convention, in case the 21st amendment scenario arises again…
But back to the main point: the idea of a national convention to propose amendments to the states for consideration. Lessig, more importantly, doesn’t dive into the most pertinent question of the form the national convention would take and how people would be chosen to serve in it. This matter is left by Article V to the Congress when creating the national convention at the request of two-thirds of the states.
Subsidiary questions that spring to mind include: How big would it be? Would it be proportional or one-state-one-vote like the ratification process? How would delegates be (s)elected? Would it have a fixed term? Would Congress be able to extend it, if necessary, without a new petitioning? Would states have a say in how they send representatives or would Congress decide alone? And so forth.
I recognize he’s partly just trying to throw the idea out there and get some buzz going — and I salute that. But I’m also excited to consider all the different hypothetical possibilities — as well as the potential pitfalls.
