Constitutional Convention is a perilous proposal

A blown up copy of the United States Constitution. (Tyrone Walker/File)

It is hard to imagine anything more irresponsible than the campaign by Republican state legislators (and Republican-aligned lobbyists) to hold a national Constitutional Convention just so they can attach a balanced-budget amendment. They have a number of states on board already (the exact figure is up for debate), and may need as few as seven more to unleash chaos.

It turns out that Democratic state legislators can be just as reckless. Some of them want a Constitutional Convention, too, their goal being to overturn Supreme Court rulings on campaign finance. Maryland is apparently poised to become the fifth state to issue that call.

Why are these efforts so terrifying? Because no one knows anything about this method of amending the Constitution. Here’s the relevant Article V text:

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.”

Questions the text doesn’t even begin to answer:

• What constitutes a valid “application” from a legislature?

• Does a topic have to be specified? If so, what counts as a “topic”? Does the language have to be identical in all two-thirds of the states?

• How would a convention under this clause work?

• How many delegates would there be? Who would be eligible to serve? How would they be chosen? How would they be apportioned among the states? Or would they be apportioned by states at all?

• What could the convention do? Would the subject matter be limited to the topic in the original application? Or once the door is opened, could the delegates do whatever they wanted — even if it included overhauling the entire constitutional system?

• Who would decide any of this?

Article V says, “Congress … shall call.” Is there any limit on what procedures Congress could use in calling for a convention or on its decision determining if the 34 state applications are valid? (That is the number needed to make a national convention happen.) Could the courts override choices by Congress or the convention?

Yes, there are a lot of questions. It’s easy to imagine a partisan Congress rigging a convention to ensure a huge party advantage or using such a convention to adopt more rules to stifle the minority. Even if Congress and a Constitutional Convention have the best of intentions, we could still wind up with unfair procedures. After all, no precedent exists for any of this.

The only clear limit to such a convention is that any amendments it proposed would have to be ratified by three-quarters of the states. But this requirement may not be a sure way to prevent trouble.

All amendments to date have been ratified by state legislatures after being proposed by Congress. But Article V also provides an alternative form of ratification: state ratification conventions, which are just as undefined as the national amendment-writing convention. A Congress intent on playing hardball could choose to ratify new amendments by state conventions, bypassing the state legislatures, and then draft rules for those conventions that would lock in partisan advantage. Or, in another scenario, a runaway national convention could demand that the state convention method be used to ratify its amendments. A craven Congress might go along.

So, in other words, demands for a balanced budget or for limits on money in politics could lead to the demise of the two-centuries-old constitutional system or to the injection of interest-group giveaways into the nation’s founding document — or to chaos.

C’mon, Constitution-loving patriots: Speak out against this nonsense before it’s too late.

Jonathan Bernstein is a Bloomberg View columnist covering U.S. politics.