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Is a New Constitutional Convention a Good Idea?

Concerns over the risks have led to a near-universal opposition on the left, but some are asking whether it’s wise to take that option off the table.

August 10, 2023

This piece was originally published by Newsweek.

Over the past few decades, conservative activists have patiently set their sights on organizing the first constitutional convention since 1787, invoking a never-used provision of the Constitution that allows 34 of the 50 state legislatures to summon a convention for the purpose of proposing changes to our national charter. While their proposals vary, the right’s Article V convention campaigns, named for the provision of the Constitution that prescribes the amending process, have the same goal: radically curtailing the size and scope of the federal government. They also evoke nightmares of a “runaway convention” that could open the door to a wholesale rewriting of our fundamental law. That threat is real.

One longstanding campaign seeks an amendment requiring Congress to balance the federal budget. Since the measure’s fine print would also make it harder for lawmakers to raise taxes, everyone understands that the Balanced Budget Amendment would transform a far-right fiscal austerity agenda into a constitutional mandate. So far, 27 states have submitted petitions calling for a balanced budget convention.

A parallel effort, launched in 2014, has an even more extreme aim. The so-called Convention of States project, endorsed by 19 states, envisions multiple amendments limiting the power and jurisdiction of the federal government. Amendments abolishing the income tax and narrowing Congress’s regulatory powers would be just the start. If adopted, these reactionary measures would dismantle modern governance, ending environmental protections, economic regulation, and social safety net programs like Social Security and Medicare.

Standing in the way of these campaigns is a coalition of advocacy groups that has mounted a spirited defense, lobbying to block new state applications to Congress. As Common Cause, a leader in this fight, argues, “an Article V convention is a dangerous and uncontrollable process that would put Americans’ constitutional rights up for grabs.” They have a point, as Article V provides no guidance on how a convention should be run.

For years, understandable concerns over the risks of an Article V convention have led to nearly universal opposition on the left. But now, a growing number of progressive scholars and reformers are asking whether it’s wise to take the convention option off the table completely, particularly given the dim prospects for change in a Congress that has dragged its feet on democracy reform. Speaking for the “convention curious,” Columbia legal scholar David Pozen asks whether a convention might offer progressive reformers “a chance to rethink our institutions and make them more democratic.”

One reason to be cautiously open to the Article V route is a convention’s potential prodding effect on Congress. The saga of the Seventeenth Amendment, which established the direct election of U.S. senators by voters in each state, provides some inspiration. We celebrate the measure today as a critical advance in the march of American democracy, wresting the power to elect senators from state legislatures and giving it directly to the people. But for two decades, the Senate refused to consider the measure, until the credible threat of an Article V convention finally forced a vote.

It’s been half a century since Congress last proposed a successful amendment. Could an Article V convention similarly usher in a new era of progressive reform? Perhaps, but reform-minded Americans should be wary of embracing this untested vehicle for change until some important protections are in place.

For a start, there should be clarity on how a convention’s rules and procedures are to be set. While conservative activists assume that these questions can be left to the delegates themselves, the best way to prevent a runaway convention is for Congress to enact a comprehensive set of procedures well before a convention is ever assembled. In years past, senators Sam Ervin and Orrin Hatch both championed bills that provide a helpful place to start.

Delegates to a convention must also represent “We the People,” not merely the interests of states. The Convention of States’ organizers like to say that the question of representation at an Article V convention should be governed by the practice at the Constitutional Convention of 1787, where each state had one vote. But that would be grossly unfair, giving a disproportionate advantage to states with small populations. Delegates should be apportioned according to a state’s population or its number of electoral votes.

Finally, while Article V gives states the role submitting petitions for a convention, it gives Congress the responsibility to “call a convention.” Ultimately, those campaigning for a convention aren’t in the driver’s seat – Congress is.

With these protections in place, Americans of all political stripes would be assured that amendment proposing convention could be safely limited in scope. Who knows, it might just get progressive reformers into the Article V convention game.