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The Failure of the Constitutional Amendment Process to Protect Federalism: A Diagnosis and Treatment Plan

The national convention method for proposing and ratifying amendments has never been used to amend the Constitution. Its reliance on two-thirds of state legislatures to apply for a national convention to propose a constitutional amendment has led to an almost universal fear of a runaway convention that has prevented this amendment method from functioning. This concern is pervasive despite the requirement that any convention approved amendment would have to be ratified by three-fourths of state legislatures or state conventions. In this installment of the Liberty Forum, Michael Rappaport engages these considerations and urges a rehabilitation of the national convention model, a reform that might be necessary given the increasing consolidation of power in the federal government.

The historical trajectory of the United States Constitution has moved uniformly towards nationalism.  Since the original Constitution and the Bill of Rights were enacted, the constitutional amendments that have been passed have generally expanded national power or restricted state power.  Virtually no constitutional provisions have been added that move in the direction of limiting the national government or invigorating federalism.

For many observers, these developments are best understood as resulting from changes in societal circumstances and values that support a nationalist approach.  According to this view, as the country becomes more economically and culturally interconnected, it makes sense both to have greater national regulation to address externalities and to treat the nation more as a single entity that should be governed by uniform standards.

While this explanation fits certain nationalistic political views perfectly, it is problematic.  Although some historical forces support greater national power, other forces suggest stricter limits on such power.  For example, congressional spending and debt appear to have grown out of control in recent decades.  Members of Congress may also have become caught in a culture of corruption.  As a result, the public has exhibited strong support for several constitutional amendments intended to address these concerns, such as amendments involving balanced budgets, a line item veto, and congressional term limits, but none of these amendments have been enacted.  Although some might understand these failures as simply reflecting the difficulty of the amendment process, there is another significant possibility: the constitutional amendment process is biased in favor of changes that expand national power and against changes that limit such power.

The Constitution was not designed to exhibit this bias.  Instead, the Framers believed that amendments should be forthcoming to correct whatever deficiencies the Constitution developed.  They therefore sought to prevent any one entity from being in a position to block constitutional amendments.  Referring to the danger that the Congress would obstruct amendments that constrained its powers, George Mason stated at the Philadelphia Convention that “[i]t would be improper to require the consent of the Natl. Legislature [to pass amendments], because they may abuse their power, and refuse their consent on that very account.”  As a result of these views, the Constitution authorizes two basic methods designed to allow amendments that either expand or constrain national powers.  Under the congressional proposal method, two thirds of each house of Congress can propose a constitutional amendment.  Under the national convention method, the state legislatures can apply for a national convention that then decides whether to propose a constitutional amendment.  The amendments proposed under either of these two methods are then subject to ratification by the state legislatures or state conventions, as Congress determines.

These amendment methods were designed to operate together to ensure that no one entity could prevent the enactment of an amendment.  Thus, if Congress seeks an amendment that the state legislatures oppose, Congress can propose the amendment and task state conventions with the ratification decision.  Similarly, if the state legislatures seek an amendment that Congress opposes, the state legislatures can apply for a national convention that could propose the amendment, which would then be subject to ratification either by the states legislatures or state conventions.

Unfortunately, the national convention method, which allows the nation to bypass Congress, does not work.  Not only has it never been used to enact an amendment, but no convention has ever been called.  Moreover, given the public support for the amendments listed above, it is hard to attribute this lack of use to a lack of political interest in enacting amendments that Congress opposes.  Instead, problems with the functioning of this amendment method  prevent it from enacting amendments.

The failure of the convention method means that the Constitution largely operates as if it contained only the congressional proposal method for enacting amendments and therefore that no amendment that Congress does not support can be enacted.  This congressional and nationalistic bias in the amendment process has distorted our constitutional history by preventing amendments that check Congress and, unless corrected, promises to do the same to our constitutional future.

In the remainder of this essay, I will briefly explore this constitutional defect, explain why it occurs, offer a reform that would correct the defect, and even identify a realistic method for enacting that reform.

The Fear of a Runaway Convention

Why does the national convention method not work?  Under that method, two-thirds of the state legislatures apply for a convention that can propose amendments, which are then subject to ratification by three-quarters of the states.  Although there are several reasons why the national convention method does not function, the most important is the fear of a runaway convention.

To understand why the fear of a runaway convention cripples this amendment method, imagine that you are a state legislator who is deciding whether to vote for a convention.  You believe that some limits are needed on the incurring of federal debt, such as a balanced budget amendment.  If you could be sure that the convention would restrict itself to this issue and decide whether to formally propose a balanced budget amendment, you would vote to apply for a convention.

But you cannot be sure that the convention would restrict itself to this issue.  The convention might end up proposing constitutional amendments on other unrelated issues – amendments that you strongly dislike.  For example, the convention could propose an amendment that would either constitutionally protect or prohibit same sex marriage. Moreover, this amendment might then conceivably be ratified by the states.  Given this risk of a runaway convention, you might decide that it is better to forego the convention than to risk enacting an amendment you strongly dislike.

The term “runaway convention” has various meanings.  In this essay, I use it to mean a convention that departs from the subject on which the state legislatures sought to have a convention.  Constitutional scholars have long debated whether the Constitution allows state legislatures to apply for a convention limited to proposing an amendment on a single subject.  Some scholars argue that the Constitution permits state legislatures to choose whether to apply for either a limited convention or for an unlimited convention that may propose amendments on any subject.  Other scholars argue that the Constitution permits state legislatures to apply only for an unlimited convention.  But no matter which side of the issue the state legislatures embrace, there is still a significant risk of a runaway convention.  If the state legislatures believe they can only apply for an unlimited convention, then the resulting unlimited convention will have authority to propose amendments on any subject.  If the state legislatures believe that they can apply for a limited convention, then they can attempt to restrict the convention to considering only a specific subject.  But that does not mean that the Congress, the convention, the states, or the courts will agree with them.  For example, even if the state legislatures believe they have the right to apply for a limited convention and Congress calls such a convention, the convention might disagree and propose amendments on other subjects.

A runaway convention is not merely a theoretical possibility, but is a realistic fear, as the runaway Philadelphia Convention of 1787 illustrates.  An amendment not sought by the state legislatures might become popular at the convention for a variety of reasons, including because an issue suddenly becomes prominent or some of the delegates choose to promote another amendment. It is true that this amendment would still need to be ratified by the states, but that might occur even though the state legislatures did not intend to ratify a different amendment when they applied for the convention. A proposal can take on a life of its own and this momentum can persuade legislators to vote for it, even though they did not initially expect to support it when they applied for the convention. More importantly, Congress might decide that the ratification decision should be made by state conventions rather than state legislatures.

A runaway convention would be extremely undesirable from the perspective of the state legislator who seeks an amendment on a specific matter.  First, it would propose an amendment that the state legislator might strongly dislike.  That would then require the state legislator and others to engage in a potential 50 state fight to prevent the amendment from being enacted.  Second, if the amendment was ratified, then that strongly disliked provision would appear to become part of the Constitution.

Finally, ratification of the amendment might also create a constitutional crisis.  Assume that the state legislatures seek a limited convention and that limited conventions are constitutional.  Then, would this new constitutional provision – which was ratified by three quarters of the states but was enacted through an illegal mechanism – be constitutional?  This issue might be decided by the Supreme Court, but it would be problematic however it was resolved.  If the amendment were found valid, then many of its opponents would believe that part of the Constitution was illegal, because the limits on the convention had been abridged.  If the amendment were found invalid, then many of its supporters would argue that part of the Constitution had been nullified, because the courts had improperly second-guessed the decisions of the convention and of three-quarters of the states.  In either case, there would be a significant dispute about the content of the nation’s fundamental law.  One can only imagine the conflict if the dispute involved a hotly contested issue, such as an amendment outlawing or protecting same-sex marriage.

Given the serious problems that might arise from a runaway convention and the significant possibility that such a convention could occur, it is not surprising that state legislators are unwilling to vote in the requisite numbers for a convention.  Individual legislators are likely to believe that relatively few amendments make sense.  Even fewer amendments are likely to have the support of two thirds of the state legislatures in the county.  But those few that do have the requisite degree of support have unfortunately been unable to overcome the fear of a runaway convention.

It is the fear of a runaway convention that appears to explain the failure of the balanced budget amendment to secure the necessary 34 states needed for a convention.  In the 1980s, the amendment appeared to have secured 32 of the 34 state applications needed for a convention.  Yet, it has failed to acquire the additional two states, even though there has continued to be strong concerns about federal debt over the last several decades.  It seems likely that the state legislators who voted for a convention for the balanced budget amendment were expressing their support for the amendment, but would have preferred Congress to pass it.  Supporters of the amendment are just not willing to incur the risks from a convention.

The State Drafting Reform

While the national convention method does not work, there is a way to reform this amendment method so that it does function.  In this section, I describe a reform – what I call the state drafting reform – that satisfies three requirements that I believe are essential for revising the national convention method.  First, the reform must, of course, avoid the problems of a runaway convention that afflict the existing national convention approach.  Second, the reform must establish an amendment method that has two of the key characteristics of the Constitution’s existing amendment methods: it must use strict supermajority rules for both proposing and ratifying amendments and must employ different entities to propose and to ratify amendments.  These characteristics promote high quality amendments that have consensus support from the electorate.  Finally, the reform must be attractive to state legislators and therefore potentially likely to be adopted.  My concern here is not merely to recommend a desirable reform, but one that might be adopted in the manner I describe in the next section.  For this to happen, state legislators must find it desirable.

The state drafting reform would satisfy each of these requirements.  Under this reform, the state legislatures would draft the amendment themselves rather than have a convention draft it.  In describing the state drafting reform, it easiest to begin with a simple version and then to introduce three modifications that would improve its operation.  Under the simple version of the reform, each state legislature would have the power to offer a specific amendment.  Once two-thirds of the state legislatures approve an identically worded amendment, that amendment would be formally proposed.  This would trigger the ratification stage, which would require, as it does now, three-quarters of the states to ratify a constitutional amendment.  This arrangement would prevent a runaway convention, as there is no convention and a formal proposal must employ the specific language approved by the state legislatures.

This simple version of the reform has three problems that should be addressed.  First, the simple version does not provide the states with a sufficient opportunity for debate and coordination.  Under the simplified procedure, each state legislature would decide on its own what amendment to pass.  The states would not have an opportunity to debate one another as to whether an amendment makes sense in general and, if so, what particular version of the amendment should be adopted.  Under the simple version, the states would also not be able to coordinate on which amendment to pass.  One state might choose one version, while a second might choose a different version.

To address this problem, the states should hold a convention, but do so in a way that avoids the pitfalls of the existing convention method.  The Constitution ought to authorize a convention of the states that is both voluntary and advisory.  A group of states could arrange a convention whenever they deemed it desirable, but no state would be required to attend.  The convention would not have any binding powers.  Instead, it would allow the states to debate the merits of different proposals.  It would also allow them to assess the popularity of different proposals and to compromise on a single amendment to be considered by each state legislature.  This type of convention would, of course, avoid the runaway convention problem.  The advisory convention would possess no power to propose an amendment.  Proposed amendments would result only from the approvals of the state legislatures.

The second problem with the simple version of the state drafting approach involves the degree of power that it confers on the small states.  Under the simple version, there are essentially two limits on a constitutional amendment: it must be proposed by two-thirds of the states and then it must be ratified by three-quarters of the statesWhile the three-quarters supermajority rule in particular is very strict from the perspective of the number of states, it actually appears quite lenient when one considers it from the perspective of the number of citizens who are represented.  It turns out that if the smallest three-quarters of the states were to support a constitutional amendment, those votes would only represent approximately thirty-nine percent of the population of the United States.

This is a serious matter if one believes, as I do, that supermajority requirements for constitutional amendments promote high-quality constitutional provisions.  The most obvious solution would be to change from an equal weighting of each state’s votes to one based on each state’s population.  Each state would then have a vote equal to the number of representatives it has in the House of Representatives.

But this proposal is unlikely to be supported by the small states, as it would reduce much of their voting strength.  What is needed is a compromise between the small and large states.  Instead of allocating votes to each state based on its population, one could allocate votes based on the number of electoral votes a state has. Because electoral votes are the sum of the number of representatives and senators for each state, they represent a compromise between representation based on population and representation based on state equality.  A large state like California would be entitled to fifty-five votes, based on fifty-three representatives and two senators, while a small state like North Dakota would be entitled to three votes, based on one representative and two senators.

One might object that the small states might deem this compromise unfair. Going from a voting rule in which California and North Dakota receive equal votes to one in which they receive fifty-five and three respectively might not seem like an equitable compromise, even though North Dakota gets more votes than its population warrants.  Two responses can be made to the small states.  First, to sweeten the deal for the smaller states, one should use electoral votes for only one of the two constitutional amendment votes.  I recommend using it for the ratification vote, while using the equal state voting rule for the proposal vote.  Second, the small states would gain from a deal that allowed the state drafting reform to be enacted.  Under the existing national convention approach, the states have equal voting rights when applying for a convention and ratifying the amendment the convention proposes, but since the process is never used, their equal power has little value.  Under the reformed process with ratification based on electoral votes, the small states would have less formal voting power, but their votes would be more valuable because amendment method would be used more often.

The third and final problem with the simple version of the state drafting method is that it potentially allows state legislatures too much power.  Under the simple version, the state legislatures first propose the amendment and then the state legislatures or state conventions ratify the amendment.  While there is no problem with state conventions ratifying the amendment, allowing the state legislatures to both propose and ratify the amendment would confer too much power on a single entity. That entity could then pursue its institutional interests without sufficient constraint.

This problem, however, can be corrected by shifting ratification authority from state legislatures to ballot measures.  A proposed constitutional amendment might be ratified by a simple vote of the people, as are constitutional amendments and other laws in many states throughout the nation.  While the ballot measure would certainly be an innovation for the Constitution, its wide use by the states makes it a familiar and tested device.

It also seems likely that the state legislatures would be willing to propose such an amendment method. While they might prefer having greater power, they would likely understand the importance of having two separate entities involved in the process. Moreover, if the state drafting reform is to be passed, it would need to obtain the support of a national convention, and that convention might be skeptical about approving an amendment that seemed to be a state legislative power-grab.  Further, the state legislatures would also have more actual power under the reformed amendment method than under the ineffectual national convention method.

The reformed amendment process outlined here would resurrect the Constitution’s original design by establishing an amendment method that would both function to allow amendments to pass and would not require the approval of Congress.

Enacting the Reform

The state drafting reform, however, might seem unlikely to be adopted under either the congressional proposal method or the national convention method.  Congress is extremely unlikely to propose a state drafting procedure that would deprive it of the effective veto over the amendment process that it currently enjoys.  This leaves the national convention method.  But that method might seem unlikely to produce this or any amendment, because of the fear of a runaway convention.

There is an irony here in that the very reasons that make the national convention method so important and so problematic also prevent its reform.  But this irony turns out be only apparent. While the national convention method is defective, it may be possible, through significant effort, to use it once to adopt a state drafting amendment. This old, broken car may still be capable of one last trip to the dealership to buy a replacement.

It is true that state legislators are ordinarily wary of applying for a national convention. But by anticipating the difficulties and taking extraordinary actions to prevent them, the state legislatures might be able to significantly reduce the possibility of a runaway convention.  Knowing that this problem could be addressed, the state legislatures might be willing to apply for a convention to enact a state drafting amendment that would significantly enhance their own authority in the future.

The state legislatures could address the difficulties by combining elements of the state drafting procedure with the existing national convention approach.  First, the states should hold a voluntary convention in order to agree on a single specific amendment and a strategy for adopting it.  By proposing a single specifically worded amendment, the states would underscore that they favor a particular amendment.  This would make it harder for a convention to argue that the states were not fully in agreement and therefore the convention should be allowed discretion to formulate different amendments.

Second, the states could take a variety of additional actions that would significantly reduce the possibility of a runaway convention.  Most importantly, they could attempt to promote a legal or moral norm against a runaway convention by passing various measures deeming such conventions illegal or improper.  For example, the state legislatures that apply for a convention to pass the state drafting amendment should also announce in their applications that they believe a runaway convention is both illegal and improper and that they pledge to vote against any other amendment that the convention might propose.

Moreover, state legislators should take strong actions to promote delegates to the convention who are likely to support the state drafting amendment and unlikely to support a runaway convention.  One effective way of promoting such delegates would be to have prospective delegates take pledges to oppose a runaway convention.  The delegates to the convention are likely to be selected either by the state legislature or by a popular election.  If the state legislature selects them, it should insist that the candidates it selects take a pledge to oppose a runaway convention.  If the delegates are chosen through a state election, the legislators should strongly campaign only for the candidates who pledge to vote against a runaway convention.

The legislators should also insist that the delegates agree not to sign or support any rules at the convention that would prevent them from disclosing a decision by the convention to debate a different amendment that the state legislatures had sought.  In that way, these delegates can reveal that the convention is behaving improperly so that the nation can apply political pressure to restrain it.

Finally, the state legislators should attempt to oppose the ratification of an amendment that they had not sought.  If Congress chooses the state legislatures to make the ratification decision, then they can certainly vote against ratification.  If Congress chooses state conventions to make the decision, the state legislatures should strongly campaign against ratification.

These actions by the state legislatures would significantly decrease the possibility that an amendment the state legislatures had not sought would pass.  This, in turn, should make it more likely for state legislatures to be willing to submit applications for the state drafting amendment. Of course, the state drafting amendment, like any proposed amendment, would only have a good chance of passing if it became popular.  But the strategies outlined here suggest that, if the amendment does become popular, there might be a way of enacting it.

Conclusion

Unfortunately, the constitutional amendment process has not functioned as the Framers designed it.  The failure of the national convention process has done great harm to our ability to limit Congress’s power and to protect federalism.  But this failure can be corrected.  The state drafting reform would both revive our ability to limit the federal government and contribute mightily to the good of the nation.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.