As 2018 draws to a close, speculation about what lies ahead on the American constitutional landscape in 2019 begins in earnest. Most of the discussion focuses on the possibility of investigations, impeachments, indictments, prosecutions, and pardons for those in or near the highest levels of the executive branch. But another, more wide-ranging, possibility that has garnered attention recently is the prospect of a federal constitutional convention to propose fundamental revisions to the document. Article V of the Constitution, which lays out at least some of the ways the Constitution can be formally changed, mentions two pathways to proposing constitutional amendments. The first method requires two-thirds of the House of Representatives and two-thirds of the Senate to concur in offering particular amendments for ratification in the states. The other method—the one being discussed now—is a convention for proposing amendments that must be held when two-thirds of the state legislatures call for such a proposing convention. (Under either path, any proposed amendments require three-quarters of the states to approve, either via their legislatures or via state ratifying conventions—at Congress’ election—in order to be enacted.)
Thus far, only the first route—running through the House and the Senate—has been used to propose amendments for potential ratification; although many states have at various times called for a proposing convention to be held, there has never yet been agreement that the two-thirds threshold has been met. Today, persons and groups fundamentally dissatisfied with the way American government works are redoubling their efforts to get state legislatures to call for a convention. Some of these proponents (probably a majority of folks who seek a proposing convention) occupy a space on the right side of the political spectrum, and their reform agenda includes things like term limits for federal legislators, repeal of the Seventeenth Amendment’s provision for direct election of senators, a substantive requirement of a balanced federal budget, and the like. Others, on the left, see a proposing convention as a way to repeal the Citizens United case (and the large flows of money in politics for which it stands) or to cut back on the Second Amendment’s protection for firearms possession and use.
The chances that two-thirds of the state legislatures come together to call for a proposing convention are slim, but many constitutional events that seemed very unlikely a few decades ago have come to pass, so we ought not to ignore the energy in support of a convention that has emerged in recent months.
And as we think more critically about the constitutional convention possibility, we should bear in mind how many fundamental legal questions about the convention route remain largely unanswered. The uncertainty about how a convention could come into being and would operate is due in part to the fact that we’ve never seemed to be on the verge of a convention and in part to the fact that federal courts (including the Supreme Court) are likely to consider some of these basic queries to be non-justiciable “political questions.” Also contributing to the absence of consensus is the fact that relatively few legal scholars write about these topics.
To help begin remedying this, I offer below a partial list of (two dozen) important and relatively open questions concerning a new federal constitutional convention to propose amendments. Almost all of these are drawn from an excellent essay by my friend and esteemed constitutional law colleague Laurence Tribe of the Harvard Law School that was penned over three decades ago and remains instructional today:
- Must both houses of each state legislature take part in making an application to Congress to hold a convention for the application to count?
- More basically still, can the people of a state, acting directly via a plebiscite in states that permit direct democracy, constitute the “legislature” of the state for these purposes?
- By what vote in each house of a state legislature must application to Congress be made? Simple majority or something else?
- What is the effect of a state gubernatorial veto on a state’s application?
- When, if ever, does a state’s application lapse?
- May a state insist in its application that Congress limit the convention to considering specific amendments? (The concern that there are no limits is sometimes described in terms of a “runaway” convention.)
- Relatedly, must a state’s application relate to one or more specific amendments or can it seek a convention to revise the Constitution more generally?
- How close in subject matter and time must state applications be to each other in order to be aggregated for reaching the two-thirds requirement?
- May a state rescind its application? How and with what time period?
- What are the eligibility requirements for delegates?
- Must delegates be elected or may they be appointed, and if they can be appointed, by whom?
- Can Congress members themselves be delegates?
- Are states in any convention to be represented equally, as they were in 1787, or pursuant to the one-person, one-vote principle that governs all legislative bodies besides the Senate?
- Can delegates be instructed and bound by states to vote a particular way?
- Can a state recall delegates?
- Can the convention expel delegates, and if so for what reasons and by what vote?
- Does a convention operate by simple majority or some other voting rule?
- How much power does Congress have to prescribe procedures for how the convention would operate?
- How is any convention to be funded?
- How long can the convention operate?
- May the convention choose not to propose any amendments?
- May Congress choose not to submit for ratification amendments agreed upon by a convention?
- Can Congress place time limits on any amendments a convention proposes?
- Which, if any, of these questions are ones on which federal courts can hear and decide disputes?
It is impossible to know which of these questions may prove to be the most vexing and contentious, but better that we begin to think about them now, before the substantive agenda of any particular proposed constitutional convention reaches the cusp of creation.