Have you heard about convening a new Constitutional Convention? It pops up every now and again. It had a serious go in the 1980s (short 2 states) and it's been bouncing around into the news now and then. It usually gets batted back down for various reasons. It's current label is the Con-Con short for Constitutional Convention, not Constitutional Come On which would be a Con-Con-Con (Constitutional Convention Come On). A Constitutional Convention is a bad idea for multiple reasons which I'll go into later.
There is an exploratory/education committee of sorts who have met at Mount Vernon (George Washington's House) last December and again last week in Indiana to discuss a con-con and to teach law makers how a Con-Con would could work. This group is comprised of 100 legislators and they are predominantly Republican and it's backed by ALEC (pdf). They plan to meet again this December to educate invited guests on utilizing the Con-Con option. ALEC really wants a Constitutional convention and thinks it can stack the delegates to get what it wants and there's a dkos diary about this that explains why this would be advantageous for corporate interests and a lousy idea for anyone who likes living here. There are reasons a Constitutional Convention hasn't been convened in 227 years (more on that later).
The U.S. Constitution can be amended through proposals through Congress or a Constitutional Convention. Either way, the proposals must be ratified by 3/4s of the states (38) for an amendment to pass - at least that's the way it is in our current Constitution.
Here's the basis for the Con-Con:
The Constitution of the United States
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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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Recent History of Constitutional Conventions
Harvard Law published an interesting student paper on Constitutional conventions which you can find in this pdf. There were two near successes in getting a Con-Con in the last 50 years. The first over voter districting in the 1960's and the other during Reagan's first term. Neither succeeded. The one in the 1960s failed because of speculation that there would be no way to control the outcome of a Constitutional Convention. The other in the 1980's over A Balanced Budget Amendment failed because people thought the Gramm‐Rudman‐Hollings Act made a balanced budget amendment redundant.
The Con-Con Concerns
The U.S. has never used a Constitutional Convention, so
1. There are few clues as to how Article V would be interpreted by the courts, which may be problematic if you wanted to both convene a Con-Con and control it's outcome. What would SCOTUS do?
We have a clue as to how SCOTUS dealt with the 14th Amendment which refused to allow New Jersey and Ohio from rescinding their ratification. In the Kansas case called Coleman v. Miller, The Supreme Court of Kansas allowed the state to reconsider the Child Labor Amendment it had rejected in the 1920s but passed in 1937. That ruling was later upheld by SCOTUS. The Kansas Supreme Court put it succinctly, “It is generally agreed by lawyers, statesmen and publicists who have debated this question that a state legislature which has rejected an amendment proposed by Congress may later reconsider its action and give its approval, but that a ratification once given cannot be withdrawn.
The question of whether Congress can control the subject matter Con-Con would consider is still open, however, the check would be that 3/4's of the state legislatures (38 states) would still have to ratify anything a Constitutional Convention produced (or so they say).
2. Can Congress limit a Con-Con to specific areas, or is the entire document up for a re-write? There's quite a bit of contention over that very thought. Some believe Congress has broad power to limit the scope of a convention and to impose rules and procedures for its operation through the “political question” doctrine. Others believe that, based on the original text, meaning, and purpose of Article V, the scope of a convention cannot be limited. A third group thinks that Congress ignores the Constitution already, so a new one will be ignored also and it's just as likely that the delegates of a Con-Con will do what they want, too.
When Article V was written there was a big thing over fed vs. states rights which has never been resolved. Some founders wanted a way for the states to initiate a change in the Constitution and the federalists wanted the power to remain national. The compromise was if 2/3's of the states request a Constitutional Convention, then Congress shall, not maybe, but shall call one. Article V doesn't specify how Constitutional Convention is called, where it meets, who would be a delegate, what the format would be or the agenda. It also doesn't specify any constraints on a Con-Con. Article V doesn't specify how many of the delegates must agree, before it can deliver it's results. Congress could call a Constitutional Convention and mandate all sorts of constraints, but what happens if the Con-Con once convened, decides to go their own way?
Depending upon your point of view, a Con-Con would bring relief to states that feel ignored or it would be like opening a can of whup ass brand of unintended consequences. Again, one hasn't been convened in 227 years. The only check is that 38 states have to ratify whatever it produces before it can take effect.
but,
3. Can a new Constitutional Convention change the rules for ratification?
That's a big fat maybe. The original Articles of Confederation required all 13 states approve the current U.S. Constitution which reduced that burden to 75% of the current states. The first Scotus term commenced in February 1789, almost a full three months before Rhode Island ratified the U.S. Constitution. So, you can make the argument that our forefathers used the new rules before they were ratified. What's the possibility of a new Con-Con further reducing the barrier for ratification to 66% or a simple majority and using the new rules for ratification? Well, if precedent is any indication, the chances are it could happen again.
4. Can a new Constitutional Convention change the rules for representation?
Although Article V clearly states,
no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Why couldn't a Con-Con change Article V and change tie Senate representation population also? A Con-Con could make the change, 38 states (or even a simple majority if new rules call for it) ratify it and those opposed would get an SOL sandwich. Would that happen? Probably not. Could that happen? Yes. That's why those for a Con-Con assure people that the agenda of a new Constitutional Convention could be limited, but as discussed above, that's not a sure bet.
Has a Con-Con actually been called?
Michigan recently voted to request a constitutional Convention. That would be the 34th state if you use Coleman v. Miller to disallow Alabama, Florida, Georgia, and New Hampshire who requested a Con-Con in the 1970's but later rescinded their requests. Well, Boehner is reviewing this possibility. If the Speaker chooses to allow the rescissions (highly likely), it is possible some ALEC operative will file suit seeking to compel a Con-Con. If that happens, it will have to go all the way to the Supreme Court which will take a couple years.
We live in a polarized political environment that is shaped by a document that serves us fairly well. A new Con-Con would likely do something with the 2nd, 4th and 14th Amendments (if not all of them), abortion rights, marriage equality and more, which there's no way to accurately predict what would happen. Current thinking is that a Con-Con would be advantageous to the rural states, even conservatives are hesitant to play with fire? There's no guarantee anybody will get what they want out of a Con-Con. Stay tuned this one's still on the move.
1:29 PM PT: I have a typo in the diary that I can't fix right now. Rhode Island ratified the constitution in Feb 1789, not 1989. Sorry. Will fix later.
1:30 PM PT: May, not Feb.