How Should the US Constitution be Amended by the States?

At the end of 2015 I was one of two Vermont delegates to attend the fourth meeting of the Assembly of State Legislatures in Salt Lake City. The ASL was formed in 2013 by state lawmakers from across the country in a bi-partisan effort to draft rules and procedures for an Article Five Convention of the States if one is ever called for the purposes of amending the U.S. Constitution. Article V empowers both Congress and the states with the ability to propose amendments to the Constitution. Historically, only Congress has proposed amendments before sending them to the states to be ratified. Alternately, if two-thirds of state legislatures (34) submit applications calling for a convention of the states, Congress is bound to comply and provide a forum for the states to propose an amendment or amendments. If an official proposal emerges from this convention it would have to be ratified by three-fourths of the states (38) to successfully amend the Constitution. Since this second option has never been attempted and the Constitution does not provide ground rules for such a convention, there have been many decades of legal theorizing and debate as to how this should play out.

Many people question the wisdom of the state option and fear a “runaway convention” – where a coalition of states propose any number of amendments with potentially competing agendas, fundamentally altering the Constitution and the country. There are some notable single-issue efforts already underway: conservative states would like to enact a Balanced Budget Amendment, and progressive states want to advance campaign finance reform, essentially overturning the Citizens United Supreme Court decision. While I personally would support the latter and voted for a state resolution to do just that (Vermont was the first state in the nation to pass such a resolution), my purpose in attending the ASL convention was only to work towards ensuring that if an Article V convention is called for any proposed amendment(s) that the rules and procedures be sufficiently structured so as to minimize the potential for a runaway convention, and to ensure that representation at the convention reflect an appropriate balance between the competing interests of states with dramatically different population sizes and demographics. This proved to be an extremely complicated challenge. There were also proposals to require state delegations to be equally weighted by political party and gender, but these were problematic as well.

The odds of an Article V convention being called by the states seems increasingly likely with the proliferation of grassroots, social-media driven political mobilization, and because of growing dissatisfaction among people of all political persuasions with the direction the federal government is moving the country on any number of fronts. The Constitution is a living document that was intended by the founders to be responsibly altered by the people as circumstances warrant, so I believe the goals of ASL and other like-minded groups are important. Unfortunately at our particular meeting in Utah, there was an attempt by some states, under the influence of ALEC (the corporate–funded American Legislative Exchange Council), to encode a simple majority/”one state, one vote” provision into the rules, which would mean that the 26 least populated states could theoretically propose amendments. Though such a scenario would be unlikely to produce a proposal that would be ratified by 38 states, caution impelled a smaller coalition of ASL delegates to oppose any attempts to construct rules that could be more accommodative of activist agendas spearheaded by a disproportionate sampling of the country – be they liberal or conservative. A larger coalition of delegates at the Utah Convention – from states like Florida, Arizona, West Virginia, and Wyoming (the least populated state in the Union) – repeatedly “called the question” on substantial proposals, essentially stifling debate and ensuring their numbers would carry a vote. Around a dozen of us ultimately had to walk out at the end of the second day of the meetings to prevent agenda-driven proposals from being officially included in the draft rules. By walking out, the quorum was broken and no more official rules changes could be made until ASL meets again in late 2016.

The purpose of the alternate option encoded into Article V was based on the forethought given by the Founders to the real possibility that Congress may someday cease to be an effective or representative body. They believed that the citizens still needed a safety-valve mechanism to affect political change outside of regularly scheduled elections. In the words of Alexander Hamilton: “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachment of the national authority.” Whether or not the current disposition of the states would satisfy Hamilton’s assumptions is debatable, but nearly 230 years after its inception as a Constitutional Republic, our country faces threats from within and without as almost never before. Do we dare to reach into the heart of our country’s soul, its Constitution, in an attempt to keep the spirit alive even with the risk that the patient could very well die on the table? Or do we leave it alone in the hopes that the majority of our elected officials and the major parties will serve the people and not the amelioration of a few? Either way, it’s clear that America is heading towards some kind of climactic social and economic restructuring, and one that probably needs to happen sooner rather than later.

The ASL will meet again this year on the East Coast, and we are hoping that all 50 states will send representation, in spite of, and because of, any trepidation any of them might feel about the wisdom of an Article V convention. There is some speculation that the threshold for calling a convention may already have been breached – if the 34 state applications submitted within the last few decades are determined to be legitimate and complimentary. If and when it ever happens, we’d better be prepared.

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