Activists More Than Halfway to Forcing Constitutional Amendment Convention
Across the political spectrum, many are alarmed—but should they be?
Though it’s received relatively little attention, a conservative-led drive to call a convention to consider amendments to the U.S. Constitution has been making steady progress, and is now more than halfway toward realizing its goal.
At a time when Americans are increasingly polarized — to the extent that 43% think a civil war will erupt in the next decade — should you be alarmed or enthused?
Article V of the Constitution provides two avenues for amendments. Under the first one, Congress proposes amendments that are enacted if three-fourths of the state legislatures approve them. That’s the way all amendments have been advanced so far.
Conservative activists want to knock the dust off the other Article V provision, which empowers state legislatures to “call a convention for proposing amendments.”
To trigger a convention that way, two-thirds of the state legislatures must call for one, and governors have no say in the matter. States would then send delegates to a convention where proposals would be put forth and debated. In the end, the convention is only a vehicle for proposing amendments.
As with congressionally-proposed amendments, ratification of any convention-proposed amendment requires the approval of three-fourths of the states. That approval must come from the state legislatures or a ratifying convention in the state.
So far, 19 state legislatures have called for an amendments convention, which means advocates are more than halfway toward the 34 they need. Though that still leaves lots of work to do, there’s a sense of growing momentum, as four states joined the cause in 2022 alone: Nebraska, South Carolina, West Virginia and Wisconsin.
Today, Republicans have full legislative control in 30 states. (That doesn’t count Nebraska, which has a nonpartisan, unicameral legislature and is already on board.)
With political winds seemingly favoring the GOP in the coming November elections, a few more states could flip to full Republican control, including Minnesota and Nevada, which have yet to call for a convention.
It isn’t all about Red vs Blue, however: Convention advocates have also targeted Republicans who’ve opposed their efforts. Convention of States Action and its affiliates spent over $600,000 in at least five state primary contests.
Convention of States Action’s model language for state legislatures seeks to limit the scope of the convention to “proposing amendments…that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”
Many right-leaning advocates see a convention as an opportunity to rein in a federal government that is — thanks in part to the Supreme Court’s wildly creative interpretations of the Commerce Clause — operating far beyond the bounds of the Constitution, dominating countless aspects of American life that, according to the 10th Amendment, are to be exclusively under the purview of state governments.
"The states have sort of lost their voice, and all we can do now is beg from the cheap seats and say, 'Hey, don't do that’," South Carolina state rep. Bill Taylor, who led a successful constitution-calling effort, told Insider.
Though the largest convention drive is led by conservatives, some liberals are itching for a state-led constitution-editing session of their own. Prompted by the Citizens United decision, progressive commentator Cenk Uygur launched Wolf PAC to push for a convention geared toward campaign finance reform. Four legislatures have advanced the Wolf PAC convention application.
In 2016, Convention of States Action held a mock constitutional convention, and six amendments proposals were advanced. Among other things, they included:
Congressional term limits
Requiring a two-thirds vote of the House and Senate to increase the public debt
Restoring the Commerce Clause to its original intent and scope
Repeal of the 16th Amendment, which gave us the income tax
Giving states, by a three-fifths vote, the power to negate any federal law, regulation or executive order
Giving Congress an easy means of overriding federal regulation
While the conservative drive has largely stayed under the major media radar, there is a growing sense of alarm among liberals. Former senator Russ Feingold is promoting a new book he co-authored: “The Constitution in Jeopardy.” In an interview with ABC News, he said the effort could result in reduced federal protection of the environment, civil rights and voting rights.
There are also alarmists among some conservatives who conjure images of a “runaway convention” that ignores the stipulated scope and advances any number of unwelcome amendments — for example, an evisceration of gun rights.
Even if the convention somehow went off the deep end, it’s important to remember that it only proposes amendments. Calling a convention requires the support of 34 legislatures, but any proposed amendment must then garner the support of 38 of them—some of which didn’t even support having a convention.
With that built-in friction acting as a brake on extreme ambitions, amendments would seemingly require at least some bipartisan appeal to make it across the goal line. In that light, perhaps the proposal with the best chance of passing the high ratification hurdle would be one establishing congressional term limits, which is a central thrust of the conservative-led effort.
A 2021 Rasmussen survey found 87% of Republicans, 83% of Democrats and 78% of independents favor them, which means state legislatures would face bipartisan pressure to ratify them if given the opportunity.
The mere drive to hold a convention may have its own prodding effect on various fronts. Looking back, a state-led push for an Article V convention to bring about the direct election of U.S. senators was still one state short when Congress decided to yield to growing pressure and propose such an amendment on its own.
Though it’s understandable that liberals would view a conservative-led constitutional-amendment push with deep unease — just as conservatives would were the roles reversed — limiting the power of the federal government may be the surest way to avert more acrimonious division in the country.
The intensity of today’s division springs from the fact that we have an increasingly powerful central government — including a increasingly unchecked executive branch — imposing on 331 million people spread across a vast country containing many different subcultures and sets of values.
Liberals and conservatives are compelled to clash with increasing intensity over who gets to control levers the Constitution never even authorized. The more we rightly restore authority to state and local governments, the lower the national political stakes for all of us, and the lower our collective temperature.
However, the federal government won’t surrender that power on its own — which is exactly why the founders gave us this other avenue of amending the Constitution.
Indeed, as one contemporaneous account recorded, George Mason, in urging the adoption of the state-driven convention avenue, argued that, without it, “no amendments of the proper kind would ever be obtained by the people, if the government should become oppressive.”
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Keeping congress out of the legislation loop might be a good thing.
The Supreme Court finally did a solid and took Roe v Wade back to states, where it rightly belonged. That's the good news. The bad is that very court, over the decades, has taken the Constitution out of many clauses and Amendments. They used small cases that created precedents that were built on over time to make US Law foreign to the original Constitution.
For instance, the Constitution reads in the negative. What I mean by that is the Constitution states the federal government can not do this or that, it stops the government in its track by simply saying it can not do something. The courts have turned that around. Now the government, sanctioned by the courts, can arrest or harass a citizen for anything, and it is up to the citizen to prove their innocence. The Constitution reads that the state can not even attempt any harassment or arrest, without cause, for anything.
An example is confiscation of cash. If you are deemed that you have too much cash on your person they take it, just in case that you might be a criminal. The courts allow this, the Constitution says they can not even think, let alone act on taking it away.
There are dozens of these examples. The Constitution limits government not citizens. That needs to change.