You hear a lot of talk these days of the need for a “constitutional convention” to take up this-that-or-the-other subject. Often, this is followed by some sort of simplistic statement that such action would be “no big deal” and “the longer we put it off the harder it will be.”
Well, as in most chatter dealing with changing our founding documents, it would be a much bigger deal to get done than most folks think. For two reasons. It’s never been done and no one can agree for what purpose. A single subject? Or many? How many? If once called, would it ever end?
Yes, Article V of our Constitution says either Congress can do it or the states can if two-thirds of them agree on the need. What’s at odds is that single subject issue - or many. And that’s the stickler.
There are two schools of legal thought. First, many scholars argue for the wide-open convention. Suppose you wanted to amend the Constitution to require a balanced budget be set by Congress each session. Just that. Only that. Whether called for that purpose by Congress or two-thirds of the states, these legal eagles say delegates could go off on any subject. Suddenly, there are abortion rights, women’s health, immigration or campaign spending and hundreds of delegates pulling in every direction.
The other thinking is all in attendance would be required to stick to the one subject stated in “the call.” Problem is, once the gavel sounds to get things going, who enforces the one issue agenda? Under what authority? There’s been no test resulting in a black-and-white rule, either.
The last federal convention was in 1787 when Congress set up this whole idea. Founding fathers had required all 13 states agree on a single issue. Good thought. Impossible to achieve. Delegates argued over lots of ways to fix things but finally settled on Congress convening a convention unilaterally or at the behest of two-thirds of the states. Period.
But the issue of scope for such gatherings was never put to bed. Suppose two-thirds want a convention. That meets the legal requirement. But what if, in those requests, there’s more than one subject? Two-thirds agree on the need for the convention but not on what business is to be done. Does Congress act or wait until 34 states settle on a single subject?
Other legal voices think the two-thirds threshold is fine but subject matter would have to be confined to a single topic. Good theory. Never tested.
Fact is, an Article V convention requested by the states has never been called for these very reasons. The current Constitution says Congress “shall” call them when the required number of states petition, but it does not say for what purpose or how many purposes.
There have been two fairly recent efforts to use the Constitution’s “Necessary and Proper” clause to deal with the issue. Twice in the 1970's, the Senate unanimously approved the idea. Both times, it died in the House. How little times have changed.
So, the subject of convening a Constitutional Convention is a lot murkier than most folks believe. And the thought of a “runaway convention” with dozens of subjects, hundreds of delegates and thousands of votes terrifies the best constitutional scholars. Not to mention a few nervous politicians.
Further, if such a free-wheeling event did end, whatever actions were taken would have to be ratified by two-thirds of the states. Any bets on that?
All 27 amendments to the U.S. Constitution have been done by Congress. States have held their own conventions to deal with their own documents more than 600 times with relatively little fuss.
So, if you’re worried about the 1st, 2nd, 4th or 15th or any other amendment to the federal Constitution being changed while you sleep, forget it. Only in your dreams.