Amending the Constitution: The National Convention Option?

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: Read more