Over at the National Constitution Center website, I have an essay on the Convention Method for amending the Constitution. The essay – The Convention Method for Proposing Amendments: Essential, Misunderstood, and Broken – is part of a symposium hosted by the Center with Sandy Levinson, Gerard Magliocca, and Steve Sachs on the constitutional amendment process.
In the essay, I argue – following earlier law journal articles I have written – for various claims. First, I argue that under the Constitution, limited conventions – conventions that are limited to deciding whether to propose an amendment on a specific subject or even whether to propose a specifically worded amendment – are constitutional. The Constitution requires that such limits be respected and followed.
Second, I argue that the Convention Method is broken – it does not work to produce amendments. While there are various reasons for this, the main one is the fear of a runaway convention – a convention that has a limited mandate to propose amendments but which then departs from those limitations. This is ironic since I have argued that limited conventions are constitutional and that limits must be respected. But my argument does not mean that the convention, Congress, or the ratifying states will agree with or respect my argument. As a result, state legislatures, which might be willing to apply for a limited convention, are reluctant to do so for fear it will run away from those limitations.
Third, the brokenness of the Convention Method is a serious problem. As the Framers recognized, without the Convention Method Congress has a veto on constitutional amendments. Consequently, when reforms are needed at the national level and especially for Congress, there is little chance they will be enacted. Amendment proposals that had significant popularity, such as the balanced budget amendment, the line item veto, and congressional term limits, have all been blocked by a Congress that does not want to lose power.
Finally, the essay argues that one could reform the Convention Method by replacing it with a different process. A constitutional amendment should be passed that allows for two thirds of the state legislatures to propose a specifically worded amendment. That proposed amendment would then be subject to ratification through some nationally oriented process such as a supermajority of the nation in a referendum vote. To promote deliberation and coordination, an advisory convention – with no power except to discuss and recommend amendments – could be employed. It is possible, although by no means likely, that this reform of the amendment system could be passed through the existing amendment system.
Posted at 8:00 AM