The Common Law of Constitutional Conventions
Professor Jill Lepore’s Jorde Symposium lecture paints a rich portrait of state constitutional conventions as engines of democratization during the 1800s and issues a dire warning about the United States’ ongoing amendment drought. Citing their unfamiliarity, however, Lepore declines to consider federal constitutional conventions as a possible corrective. In this response Essay, I argue: first, that Lepore’s marginalization of Article V’s convention mechanism is in tension with her own historical and normative account; second, that while Lepore’s wariness of conventions is entirely understandable given the state of our politics—and entirely commonplace among progressives—it carries significant risks of its own; and third, that constitutional conventions are not as unfamiliar as they might seem and that our long experience with this institution at the state level supplies guidance as to how a federal convention might be made less frightening and more legitimate. If we wish to revive the Framers’ “philosophy of amendment” and reclaim popular control over fundamental law, we must figure out how to operationalize that philosophy through credible procedures. The common law of constitutional conventions is a vital resource for this task.
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Introduction
Professor Jill Lepore’s Jorde Symposium lecture is marked by the simultaneous presence and absence, exaltation and erasure, of constitutional conventions.
Throughout much of the lecture, conventions play a starring role. Discussing the Founding, Lepore remarks that “no one” in 1787 “could have predicted that there would never again be a federal constitutional convention,” and she foregrounds Thomas Jefferson’s belief that such conventions ought to occur on a regular basis.[1] Discussing the 1800s, Lepore explains that state conventions played a crucial role in abolishing property requirements to vote, curbing legislative malapportionment, and democratizing political life more broadly—leading to the arresting claim that “[t]he convention, not the legislature [or] the court, was the most important constitutional institution of the nineteenth century.”[2] Discussing the present, Lepore blasts originalism for rejecting “the very idea of change” that underpins the philosophy of amendment and contends that, if it is to meet the great challenges of the day, the United States must be open to making fundamental revisions to its fundamental law.[3]
And yet at the end of the lecture, when Lepore turns toward the future, constitutional conventions are nowhere in sight. We are urged “to learn, again, how to amend,” but there is no suggestion that conventions ought to be a centerpiece of this relearning process, or indeed that they ought to play any role at all.[4] This is consistent with comments Lepore has made in other settings, in which she has cited “the unfamiliarity of the process” and the deep distrust many Americans harbor toward one another as reasons to be wary of pursuing a federal convention.[5] The academy’s most prominent and passionate champion of formal constitutional change seems to have given up on one of the two avenues of change that the Constitution authorizes.
In this response Essay, I will try to do three things as efficiently as I can. First, I will argue that Lepore’s marginalization of Article V’s convention mechanism is in tension with her own historical and normative account. Second, I will argue that while Lepore’s wariness of conventions is entirely understandable given the state of our politics—and entirely commonplace among progressives today—it carries significant risks of its own. Finally, I will argue that constitutional conventions are not as “unfamiliar” as they might seem and that our long experience with this institution at the state level supplies guidance as to how a federal convention might be made sociologically as well as legally legitimate.
I agree with Lepore that originalism provides little help on this score. And I sympathize with those who fear the mayhem that might result from any effort to make up convention rules on the fly. Yet in between a rigid originalism and an unbridled presentism lies a middle path toward reviving this “purely American”[6] institution—one that is constrained by law, just not only or primarily the law that the Framers put to parchment in 1787 but also the common law of constitutional conventions that the states have been developing ever since.
I. W[h]ither Conventionphilia?
Article V sets out two ways to amend the U.S. Constitution. Either two-thirds majorities in the House and Senate “propose” an amendment to the states, which becomes part of the Constitution if three-fourths of the states ratify it; or two-thirds of the state legislatures “appl[y]” to Congress to call a convention, which then meets and proposes amendments subject to the same ratification regime.[7] As is well known, the United States has never used that second method. All of our amendments have originated in Congress. The first method has gone dormant, though. It has been nearly fifty years since Congress last proposed an amendment to the states.[8]
Against this backdrop, and in light of her Jorde lecture, why might we expect Lepore to promote conventions rather than push them aside, to be conventionphilic rather than conventionphobic?
Most basically, Lepore identifies the capacity for lawful change as the key to the philosophy of amendment, if not to democratic constitutionalism writ large.[9] And conventions are a technology for realizing such change—the canonical technology. Invented on our shores and now used around the world, the constitutional convention has been described as “the most distinctive institutional contribution . . . the American Revolutionaries made to Western politics.”[10]
Lepore laments the United States’ extraordinarily low amendment rate.[11] Convention drives could help increase that rate. What’s more, they could do this even if no convention ever occurs. As in the case of the Seventeenth Amendment, which instituted the direct election of senators, the credible threat of an Article V convention can put pressure on Congress to propose amendments it might otherwise opt to ignore.[12]
But beyond Article V, does the track record of conventions give reason to worry that they are an especially dangerous or ineffectual means of pursuing constitutional change? Not according to Lepore. It’s true that when various nineteenth-century conventions excluded women and Black men from the delegate pool, as Lepore relates, they failed to generate proposals to afford greater rights to women and Black men.[13] However, the cautionary lesson here has less to do with the convention mechanism than with the systematic exclusion of marginalized groups. Racist and sexist procedures of all sorts will tend to produce racist and sexist outcomes.
By contrast, when such groups were included or when the agenda turned to other topics, Lepore tells a remarkably positive story of antebellum conventions as a but-for cause of reforms that expanded the electorate and eliminated aristocratic provisions in state constitutions.[14] This rich portrait of state conventions as engines of democratization throughout the 1800s is one of her lecture’s signal contributions. Lest this portrait be dismissed as a relic of another age, the legal scholar Jonathan Marshfield has documented how state conventions continued to be a democratizing force throughout the 1900s. Reviewing the political science research on their performance, Marshfield finds “compelling evidence that state conventions [have been] effective at empowering statewide majorities over misaligned and recalcitrant state governments,” consistently “dislodg[ing] advantages that wealthy private interests enjoy during ordinary legislative sessions” in favor of “groups with broader interests, fewer resources, and more public-regarding agendas.”[15]
In short, for anyone who supports greater ease or frequency of amendment in the service of deepening democracy, there are strong presumptive reasons to be open to conventions. And this seems especially true in the United States. My fellow respondent Professor Sanford Levinson has argued forcefully that the U.S. Constitution is broken beyond what creative interpretation can hope to repair, given its myriad features that breed political dysfunction and thwart the desires of national majorities.[16] Lepore goes even further when she warns that unamendability imperils not just our democracy but our planet as well.[17] Her lecture reminds us that while it may be frightening to try something new, the status quo is awfully scary too—existentially scary. Without “a revolution in constitutionalism,” Lepore suggests we are doomed.[18]
II. Perils and Perversities of Conventionphobia
Why, then, is conventionphobia the norm in our constitutional culture?[19] Hardly any significant figures in the academy, the legacy media, or the Democratic coalition have expressed support for an Article V convention; Levinson is the exceptional “crank” who proves the rule.[20] “[I]n respectable American politics,” as Professor Jedediah Purdy has observed, “[t]he idea of a constitutional convention ranks . . . somewhere in the neighborhood of militias and citizen sheriffs—a reckless and probably right-wing fantasy.”[21]
The most commonly invoked concerns sound in rule of law values. Conventions threaten uncertainty, unpredictability, and instability. They are untested on the national stage. They could “run away.”[22] Among elites, my sense is that these concerns are often joined to a Madisonian suspicion of any device that might arouse the “passions” of so many ordinary people and to a kind of liberalism of fear, or an outlook that privileges the avoidance of terrible outcomes over the possibility of collective gains.[23] Put differently, conventionphobia can be seen as the ultimate form of “defensive crouch liberal constitutionalism.”[24]
Part of the conventionphobia on the progressive side also responds to recent developments. In the latter half of the twentieth century, the most significant drives for an Article V convention had a conservative cast, with the specific goals of overriding the Supreme Court’s apportionment decisions and balancing the budget, and with the general theme of limiting federal government power.[25] In the twenty-first century, this asymmetry in convention mobilization has widened into a gaping chasm. The Koch brothers, the Mercer Family Foundation, the American Legislative Exchange Council, and allied groups on the libertarian right have sunk large sums into a campaign to call an Article V convention.[26] Their counterparts on the center-left have spent next to nothing.
Some amount of conventionphobia may be entirely rational under these conditions. Yet like all anxieties, anxiety about this institution can become pathological if taken too far. And it would be hard to take conventionphobia much further than do most commentators and groups in the progressive mainstream, who have no plan for a convention and nothing to offer on the subject except their strenuous opposition.
I believe this is a mistake on several levels.
As a matter of democratic principle, it seems to me indefensible to write off conventions altogether. Conventions are not the only way to revise foundational legal texts. But they are a time-honored way; Article V expressly allows for them; and as Lepore explains, constitutions that cannot be amended with any regularity invite “stagnation” and “decay,” if not social and environmental collapse.[27] In a polity truly committed to popular sovereignty, Purdy has argued in a Jeffersonian key, “a basic feature of political life would be each generation’s encounter with its fundamental law” through a special convention or something comparable.[28]
As a matter of constitutional substance, it seems to me particularly odd that today’s progressives would forsake conventions, when the progressives of the early 1900s embraced this tool;[29] when the Supreme Court has taken a hard right turn; and when, as Professor Jonathan Gould and I have detailed, many overlapping components of the U.S. constitutional order impede regulation and redistribution and thus are “structurally biased” against progressive agendas.[30] No other advanced industrialized country has as many veto points in its lawmaking process.[31] In the face of entrenched minoritarian arrangements, Lepore’s historical narrative suggests that conventions may provide the only plausible path to democratizing reform.
Even if none of the above is convincing, writing off conventions is dangerous as a matter of political strategy. Professor Lawrence Lessig has warned that failure to prepare for a convention amounts to a form of “constitutional malpractice.”[32] Because like it or not, an Article V convention may arrive sooner than later. The watchdog group Common Cause counts twenty-eight states as having already submitted valid applications on the subject of a balanced budget amendment—six short of the magic number needed to trigger Congress’s obligation to call a convention.[33] One of the leading figures within a related right-wing campaign estimated in 2022 that “there’s a 50% chance that the United States will witness a constitutional convention in the next five years.”[34] Lessig has written that this campaign cannot “be stopped.”[35]
The more that centrists and progressives neglect this possibility, the more likely it is that any convention that’s called will go badly from their perspective. Ignoring an institution at the heart of the American constitutional tradition will not make that institution disappear, though it may enable a small set of motivated actors to define the terms of its reappearance. The notion that a convention is bound to lead to reactionary results will become a self-fulfilling prophecy.
III. How Not to Design a Convention: The Limits of Originalism and Presentism
Hence, one important task for those who wish to revive the philosophy and practice of amendment is to start thinking through not just all the ways a constitutional convention is scary, but how it could be structured to be less scary—more democratic, more broadly accepted, and more likely to lead to salutary outcomes.
The groups pushing for a convention to shrink the federal government have a plan for how it would be structured, which turns out to be rooted in the same philosophy of originalism that Lepore depicts as the antithesis of the philosophy of amendment. Led by constitutional scholar Robert Natelson, these groups contend that a convention would have to follow various rules dictated by the original understanding of Article V. Specifically, they contend that an Article V convention would be a “convention of the states,” in which the subject matter of potential amendment proposals would be limited by the call of the convention and in which every state legislature would select that state’s delegates (or “commissioners”) and give them binding instructions, backed by the power of recall.[36] At the convention itself, each state delegation would get one vote.[37] Congress would have no control over any of this.[38]
Even taken on its own originalist terms, this plan suffers from two major problems. (Nonoriginalists, meanwhile, may find the search for unchanging constitutional norms to be especially questionable when it comes to changing the Constitution.) The first concerns the plan’s empirical foundation. There is no support in the plain language of Article V for any of the propositions listed in the preceding paragraph, and the historical record of the Constitution’s drafting and ratification debates is slim to nonexistent on the details of how an Article V convention would work.[39] At most, Natelson is able to show that some of these protocols, such as voting by delegation, were followed by interstate and intercolonial conventions that predated the Constitution.[40] But as Natelson acknowledges, the early intrastate conventions used different rules.[41] And the interstate landscape looked utterly different under the Articles of Confederation, when there was no union. The states related to one another much like nation-states do today and the rule of decision in a relatively weak Congress was one-state-one-vote.[42] That scheme of governance was so dysfunctional that it had to be overthrown by the new Constitution. Absent explicit argument by someone—anyone!—involved in the Constitution’s creation that Article V conventions would be run like the old interstate conventions, there is no basis to believe that this was the prevailing understanding.[43]
A second problem with this approach is underscored by Lepore’s lecture and its recovery of the Founding generation’s views on constitutional change. The “convention of the states” organizers would freeze for all time one particular model of conventions known to the Framers. The Framers themselves, however, espoused a philosophy of amendment that sought to balance fixity with fluidity, preservation with experimentation.[44] And they left plenty of play in the joints when they wrote Article V’s Convention Clause.
For most questions about how to run a convention, we are therefore in what originalists call the “construction zone,” where the communicative content of the constitutional text cannot fully determine the legal result because of silence and vagueness.[45] In such situations, there is no choice but to look elsewhere for answers; original meaning has run out. We could look to the rules that governed interstate conventions before the states had relinquished part of their sovereignty and “We the People” had been called into being. But that would be a rather astonishing—and ironically ahistorical—way to fill this construction zone, given both the inappositeness of those pre-1787 precedents and the Framers’ commitment to ongoing constitutional improvement.
With the Constitution unable to resolve how, say, delegate selection or voting would be handled at an Article V convention, and in the absence of any previous Article V conventions to draw on, should we abandon altogether the search for a usable legal history? In its place, we could simply adopt the procedures that seem best, irrespective of past practice.[46] If most Americans today think it would be wise for a convention to have an upper and a lower chamber, let us go with that. If we think delegates ought to be bound to follow the instructions of their state legislatures, let us make them. If we worry the environment will be ignored in the proceedings, let us assign some delegates the duty of representing nonhuman life. The only constraints on convention design would be political will and institutional imagination.
This approach raises a very different sort of problem. For if we deny that there are any legal guidelines on how to run a convention, beyond the spare instructions of Article V and whatever procedures Congress might try to make up from scratch, we exacerbate the classic rule of law concerns.[47] And since many people’s views on an ideal convention design are likely to be informed by their views on an ideal convention outcome, any ad hoc effort to invent guidelines is bound to elicit accusations of foul play. This is not a recipe for a successful reform effort.[48] It is an invitation to procedural chicanery and political crisis. If we wish to design an Article V convention that is widely seen as legitimate in an era of intense partisan polarization and cultural conflict, we may need to draw on principles and procedures that have been used many times before—ideally in the United States, in the not-too-distant past, and in conventions that produced amendment proposals that were subsequently adopted.
IV. Conventions of Constitutional Conventions
With my remaining space, I would like to propose that there is a way to design an Article V convention that might avoid the pitfalls of the aforementioned approaches, balancing the need for legal clarity and constraint with the values of practical experience, popular empowerment, and respect for the states. The solution is to draw on many of the conventions that Lepore highlights in her lecture—in particular, the two hundred-plus constitutional conventions that states have held since the Founding.[49] The organizers of these conventions converged, over time, on a set of governing principles and procedures that together amount to what might be termed the common law of constitutional conventions.[50] Just as federal courts have looked to state practice to inform their readings of vague language in the Eighth Amendment[51] and the Fourteenth Amendment,[52] so might we turn toward the states to inform our reading of Article V’s Convention Clause.
The common law of constitutional conventions does not furnish clear answers to many questions that might arise in the Article V context, whether because of mixed precedent, insufficient precedent, or the complexities of translating state schemes to the federal level. It provides a high-level framework, not a detailed blueprint.[53] This is a virtue rather than a vice, however, insofar as we want to preserve room for creativity within constraint. In addition, almost everyone will find something to dislike (as well as plenty to like) in the common law of constitutional conventions. Although I myself am attracted to the idea of selecting some portion of delegates by lottery, the idea appears to enjoy no common law support in the United States.[54] This, too, is a virtue rather than a vice, insofar as we want to avoid any approach that maps neatly onto a particular political agenda. In drawing guidance from the states, the goal would not be to identify “optimal” procedures in a first-best sense so much as to identify fair, workable procedures capable of earning broad support. Article V convention designers could strive to emulate practices that reflect a consensus among the states, absent a very good reason to depart from the consensus.
On my reading of the historical record and secondary literature, the American common law of constitutional conventions includes the following basic norms. These norms apply to different phases of the convention process; I list them here in rough temporal order. Some of the norms are relatively crisp and rule-like, while others allow more leeway in their implementation. All of them seek, in one way or another, to facilitate popular buy-in and majoritarian outcomes.
First, delegates are chosen by voters in a special election. “The special election of delegates,” as Marshfield relates, “was an essential element of the earliest conventions, and it remains a defining feature. The core requirement is that voters select delegates solely as convention delegates and for no other government position or station.”[55] Since the Founding, it appears that only two conventions have deviated from this practice by appointing legislators as delegates: one in Texas, where voters had preauthorized the arrangement in a constitutional amendment calling for the convention;[56] and one in Louisiana that many believe is better classified as an extraordinary legislative session[57]—in part because the special election of delegates has come to be seen as a necessary feature of a constitutional convention, properly so-called.[58] Both of these “conventions” failed to produce any successful amendment proposals. Although partisan elections were common for delegate races in the 1800s and early 1900s, nonpartisan elections (in which candidates do not run on a party label) became more typical after the 1960s.[59]
Second, sitting officeholders do not make up a majority of the delegates. “Beginning in the nineteenth century,” as convention expert J.H. Snider observes, “it has become unusual for the public to elect incumbent legislators to more than 10% of a convention’s seats.”[60] By the end of the twentieth century, a number of states had gone further and prohibited legislators and other officials from serving as delegates.[61] These prohibitions might at some point become sufficiently widespread to establish a general custom. At present, it seems to me that they are better understood as evidence of a looser but more pervasive anti-legislative-domination norm in delegate selection, which reflects an abiding concern to maintain the convention’s independence from the legislature and thus to enable the development of amendment proposals apart from existing political insiders and institutions.[62]
Third, conventions comply with one-person-one-vote, in that delegates vote for themselves (rather than by geographical or other blocs) and the number of delegates from any given district is proportionate to that district’s population. In the landmark case Reynolds v. Sims, the Supreme Court ruled in 1964 “that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”[63] As a matter of federal equal protection doctrine, it is unclear whether this rule applies to the election of convention delegates.[64] As a matter of state practice and democratic principle, however, the weight of authority has moved decisively in this direction. From the beginning of the republic, Americans have broadly subscribed to the “notion that unequal representation should be mitigated as much as possible in a convention.”[65] A century before Reynolds, at the nation’s second founding after the Civil War, the Reconstruction Congress required that delegates to the ex-Confederate states’ constitutional conventions be apportioned on the basis of one-person-one-vote.[66] Once Reynolds was handed down, this became the national norm if for no other reason than that legislative districts had long been used for delegate elections, and after 1964 those districts had to be roughly equal in population.[67] New Hampshire, Rhode Island, and Tennessee have together hosted almost half of the nation’s constitutional conventions since 1950.[68] All three states follow this approach.[69]
By 1974, the American Bar Association was prepared to proclaim it a matter of “fundamental importance” that any Article V convention likewise comply with one-person-one-vote, as to do otherwise “would be unconstitutional as well as undemocratic and archaic.”[70] Leading convention scholars agreed.[71] By the turn of the millennium, the rule of Reynolds had become not only “synonymous with basic political equality rights”[72] but also “wildly popular across the political spectrum.”[73] Constitutional conventions are special sites of political equality and popular sovereignty on almost any account. And for many decades now, those substantive values have been inseparable in this country from the procedure of one-person-one-vote.
Fourth, conventions have a unicameral structure. In contrast to the bicameral structure of the federal Congress and every state legislature save Nebraska’s, the convention meets and votes as one body. This has been “a universal expectation,” according to Marshfield, reflective of “a deep commitment to popular constitutionalism and the principle of majority rule” in this institution of higher lawmaking.[74] Although its handiwork may be rejected by voters at the ratification stage, the constitutional convention has fewer internal veto points than does the typical legislature.
Fifth, conventions are deliberative bodies. That is, they have the authority to draft, debate, and generate amendment proposals, rather than simply cast an up-or-down vote on a prewritten text. Deliberation is widely assumed to be a defining feature of constitutional conventions.[75] The institution “came into being so that delegates could do much more than vote on a proposal that originated elsewhere,”[76] and I am unaware of any state-initiated constitutional convention that has limited itself to taking such a vote.[77] Whether or not it would violate Article V to dictate the precise wording of an amendment to a federal convention, as Natelson has suggested, such an approach would be inconsistent with the common law of constitutional conventions.[78]
Sixth, conventions generally operate in a transparent manner, with exceptions allowed at some stage in the deliberative process. “As every schoolchild knows,” the Philadelphia Convention that drafted the U.S. Constitution operated under a strict rule of secrecy.[79] Almost all of the state conventions that followed, however, published a journal of their proceedings with a record of votes and other actions taken, although they differed widely on the question of whether and how to report their debates.[80] By the mid-twentieth century, most state conventions had opened up most of their hearings and meetings to the public, while continuing to hold a small number of closed-door sessions.[81] In striking the balance thus, state convention practice anticipated, in broad strokes, both the late-twentieth-century turn toward transparency across U.S. public law and the more recent realization that a degree of deliberative secrecy is often crucial for effective bargaining and negotiation.[82]
Seventh, convention proposals are subject to statewide referenda. The convention itself lacks the authority to change the constitution. The convention has the power to recommend changes, which the electorate may approve or reject in the referendum. This requirement of popular ratification was uncommon in the Founding era.[83] It had become “an established practice” by 1830, according to Professor Alan Tarr, and has been ubiquitous since.[84] As far as I can tell, the last time a convention deviated from this norm was in Louisiana in 1921.[85]
Eighth, while voters may impose substantive limits on a convention’s agenda ex ante, popular ratification of its amendment proposals may “cure” violations of those limits ex post. Throughout the nineteenth century, scholars and jurists vigorously debated whether state constitutional conventions could be limited in scope.[86] A consensus emerged by the mid-twentieth century that they could be so limited, at least by the electorate.[87] If the electorate goes on to approve a constitutional reform proposed by the convention, however, courts will generally refuse to entertain challenges to the reform on the ground that it exceeded the convention’s mandate.[88] The people get to constrain the convention. They also get to excuse breaches of those constraints.
* * *
This is a preliminary list. I believe that it captures the most normatively significant and empirically prevalent features of state constitutional conventions, as they have evolved over time. But more research might reveal that I have missed or mischaracterized certain principles. And again, translating these principles to the federal level would not always be straightforward. The last two would be particularly tricky to translate, given that the Article V process for calling a convention and ratifying amendments runs through the states, rather than any sort of nationwide referendum.[89] To best approximate state practice in this area, Congress might want to hold an advisory referendum (or, more ambitiously, a series of citizens’ assemblies across the country) in advance of an Article V convention, to clarify and reinforce the scope of its mandate. If the convention generates amendment proposals, Congress could further direct that they be ratified or rejected by state conventions, not state legislatures.[90]
The details are complex and contestable. Yet while it fails to address many issues that an Article V convention would raise and leaves others open for debate, the common law of constitutional conventions helps to illuminate not only a core set of practices that have stood the test of time but also a core democratic logic of popular sovereignty and political equality that can inform the entire project of convention design. At a minimum, embracing the common law of conventions would rule out some of the most anachronistic proposals advanced by those seeking a “convention of the states”—who insist that an Article V convention abide by one-state-one-vote, instead of one-person-one-vote, and who would have our notoriously gerrymandered state legislatures select and control delegates, instead of letting the people themselves have any say.[91] A growing number of state legislatures have begun to embrace these self-serving proposals.[92] The common law of conventions can help to motivate, justify, and guide any effort to push back, including through federal legislation.
National reformers are not the only ones who can learn from this body of law. Greater recognition of its existence and resilience might go a long way toward assuaging concerns about ad hockery and special interest capture in the state setting. Even if the common law of constitutional conventions never ends up being applied at the federal level, and Article V never wakes from its long slumber, revitalizing state constitutional conventions could yield important democratic benefits in its own right.[93]
Such a revitalization has the potential to yield ecological benefits as well. One of the most striking features of Lepore’s lecture is the link it draws between unamendability and environmental degradation.[94] Of the five U.S. states that adopted a constitutional right to a clean environment in the 1970s, three (Hawaii, Illinois, and Montana) did so through a constitutional convention.[95]
Conclusion
This Essay has offered an initial sketch of the key norms that make up the American common law of constitutional conventions. Much more work needs to be done to specify and standardize a methodology for identifying pertinent norms, to flesh out their details, and to determine the best means of integrating and enforcing them in the Article V context. Some of this work may be hard. It will require, among other things, a deep dive into state materials that constitutional scholars have long neglected. But as a matter of both democratic principle and political strategy, I submit that this is an urgent task—and a far more fruitful Article V agenda for centrists and progressives than the prevailing combination of categorical hostility and willful denialism toward the prospect of a federal convention.
If we are to heed Lepore’s teachings, we must not only adopt the Framers’ “philosophy of amendment” but also adapt it to the present day, and figure out how to operationalize this philosophy through credible procedures and institutions. Attending to the common law of constitutional conventions is one place to start.
Copyright © 2024 David E. Pozen, Charles Keller Beekman Professor of Law, Columbia Law School. For helpful comments and conversations, I thank Richard Albert, Richard Briffault, Jessica Bulman-Pozen, Josh Chafetz, John Dinan, John Kowal, Ryley Lawrence-Devine, Jill Lepore, Jed Purdy, Tom Schmidt, Miriam Seifter, Jim Snider, Alan Tarr, and Katharine Young. For excellent research assistance, I thank Max Cornell.
[1]. Jill Lepore, The Philosophy of Amendment, 112 Calif. L. Rev. 2249 (2024).
[2]. Id.
[3]. Id. Most originalists would presumably counter that they don’t reject the very idea of legal change so much as insist that it conform to certain rules. See generally Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817 (2015).
[4]. Lepore, supra note 1.
[5]. Britta Greene, Jill Lepore on Why It’s So Hard to Amend the Constitution—and Why That Matters, WNYC Studios (June 30, 2023), https://www.wnycstudios.org/podcasts/tnyradiohour/segments/lepore-amend-constitution [https://perma.cc/D8QV-DTEJ]; see also Constitution 101 with Jill Lepore, Nat’l Const. Ctr. (Apr. 16, 2021), https://constitutioncenter.org/news-debate/podcasts/constitution-101-with-jill-lepore [https://perma.cc/2BEF-M5V8] (“I’m not a big proponent of the new constitutional convention myself.”); Jill Lepore, The United States’ Unamendable Constitution, New Yorker (Oct. 26, 2022), https://www.newyorker.com/culture/annals-of-inquiry/the-united-states-unamendable-constitution [https://perma.cc/G27G-WQ2Z] (noting the risk that an Article V convention “could gut the Constitution, or at least the federal government”).
[6]. John P. Wheeler, Jr., Nat’l Mun. League, The Constitutional Convention: A Manual on Its Planning, Organization, and Operation, at xiii (1961) (“The convention is purely American . . . .”).
[7]. U.S. Const. art. V (capitalization omitted). Congress has the power to choose, on a case-by-case basis, ratification by state legislatures or state conventions. Id. This Essay focuses on conventions for proposing amendments, which raise distinct questions of institutional design.
[8]. District of Columbia Voting Rights Amendment, H.R.J. Res. 554, 95th Cong. (1978).
[9]. Lepore, supra note 1.
[10]. Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 342 (2d ed. 1998); see also Robert F. Williams, The Florida Constitutional Revision Commission in Historic and National Context, 50 Fla. L. Rev. 215, 220 (1998) (“[The constitutional convention is] one of America’s great contributions to the constitutional learning of the world.”). Although routinely described as an American invention, the constitutional convention has arguable antecedents in the English Convention of 1660 and Convention Parliament of 1689. See Matthew Steilen, The Constitutional Convention and Constitutional Change: A Revisionist History, 24 Lewis & Clark L. Rev. 1, 11–21 (2020).
[11]. Lepore, supra note 1.
[12]. See John F. Kowal & Wilfred U. Codrington III, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union 137–38 (2021); cf. Russell L. Caplan, Constitutional Brinksmanship: Amending the Constitution by National Convention 61 (1988) (stating that by the turn of the twentieth century, the Convention Clause had “evolved into a ‘protest clause’ to goad or scare Congress . . . to act on a desired amendment”); Russ Feingold & Peter Prindiville, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It 97 (2022) (crediting state convention calls with playing “a significant, perhaps decisive, role in waking up Article V and revitalizing formal amendment” during the Progressive Era).
[13]. See Lepore, supra note 1.
[14]. See id.; see also Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859, 892–94 (2021) (detailing additional ways in which “state constitutional conventions restricted legislatures from acting in favor of special interests and against the public weal” in the 1800s).
[15]. Jonathan L. Marshfield, American Democracy and the State Constitutional Convention, 92 Fordham L. Rev. 2555, 2561 (2024).
[16]. See, e.g., Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (2006). The Constitution’s offending features, on Levinson’s account, include the Electoral College, the presidential veto, the apportionment of senators, bicameralism, judicial life tenure, and Article V itself. Id. at 25–166.
[17]. Lepore, supra note 1.
[18]. Id.
[19]. For more on the concept of conventionphobia and its pervasiveness in the United States at the turn of the millennium, see Gerald Benjamin & Thomas Gais, Constitutional Conventionphobia, 1 Hofstra L. & Pol’y Symp. 53 (1996).
[20]. See Sanford Levinson, What Do We Talk About When We Talk About the Constitution?, 91 Tex. L. Rev. 1119, 1138 (2013) (“But what most dismays me, and I’m afraid sometimes turns me into something of a crank, is that there is no serious conversation at all taking place at the national level about any kind of serious constitutional reform. What I strongly desire, as you know, is a new constitutional convention.”). Levinson’s Harvard Law School colleague Lawrence Lessig might be added to this exceptional category. See, e.g., Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It 290–304 (2011).
[21]. Jedediah Purdy, Two Cheers for Politics: Why Democracy Is Flawed, Frightening—and Our Best Hope 222 (2022).
[22]. See Marshfield, supra note 15, at 2602 (explaining that the two most prominent objections to an Article V convention have been the concern that it “might ‘run away’ from its mandate” and the “related concern . . . that there are few (if any) guidelines for how a federal convention would operate”).
[23]. See The Federalist No. 49 (James Madison) (warning that if a new convention were to be called, “[t]he passions . . . of the public would sit in judgment”). On the liberalism of fear, see generally Judith N. Shklar, The Liberalism of Fear, in Liberalism and the Moral Life 21 (Nancy L. Rosenblum ed., 1989). On the fraught relationship between progressivism and populism in U.S. legal history and the “migration” of populist constitutional thought from left to right, see generally Louis Michael Seidman, Populist and Progressive Strands in American Constitutionalism, 53 Conn. L. Rev. 411 (2021).
[24]. Mark Tushnet, Abandoning Defensive Crouch Liberal Constitutionalism, Balkinization (May 6, 2016), https://balkin.blogspot.com/2016/05/abandoning-defensive-crouch-liberal.html [https://perma.cc/PDJ5-LB6R].
[25]. See Caplan, supra note 12, at 70–89.
[26]. See Feingold & Prindiville, supra note 12, at 118–22; Travis Waldron, A Radical Right-Wing Dream to Rewrite the Constitution Is Close to Coming True, HuffPost (Apr. 28, 2021), https://www.huffpost.com/entry/mark-meckler-article-five-constitutional-convention_n_6086c380e4b09cce6c143b10 [https://perma.cc/S7J7-9R2L]. Professor David Super has emerged as the most forceful legal critic of this convention drive. See, e.g., David A. Super, Am. Const. Soc’y, A Dangerous Adventure: No Safeguards Would Protect Basic Liberties from an Article V Convention (Oct. 2021), https://www.acslaw.org/wp-content/uploads/2021/10/Super-IB-Final3615.pdf [https://perma.cc/7VD5-TJRA].
[27]. Lepore, supra note 1.
[28]. Purdy, supra note 21, at 221. For a contrary view, see Roman J. Hoyos, Article V and the Law of Constitutional Conventions, 11 Brit. J. Am. Leg. Stud. 257, 295 (2022) (“It may well be that conventions have little role to play in post-democratic societies.”).
[29]. See supra note 12 and accompanying text.
[30]. Jonathan S. Gould & David E. Pozen, Structural Biases in Structural Constitutional Law, 97 N.Y.U. L. Rev. 59 (2022).
[31]. See id. at 91–92.
[32]. Lawrence Lessig, Making a Constitutional Convention Safe for Democracy, N.Y. Rev. Books (Apr. 17, 2023), https://www.nybooks.com/online/2023/04/17/making-a-constitutional-convention-safe-for-democracy-lessig/ [https://perma.cc/AS7S-G3BN].
[33]. U.S. Constitution Threatened as Article V Convention Movement Nears Success, Common Cause (2023), https://www.commoncause.org/resource/u-s-constitution-threatened-as-article-v-convention-movement-nears-success/ [https://perma.cc/9JD5-EHF2]. While the decades-old campaign for a balanced budget amendment seems to have stalled out, the more ambitious campaign for a “convention of the states”—which could generate any number of proposals to disempower the federal government, including but not limited to a balanced budget amendment—has amassed nineteen state applications over the past seven years. Id. In a simulation of such a convention held in 2023, the delegates passed proposals to restrict Congress’s powers to tax, spend, and regulate interstate commerce; to impose term limits on members of Congress; and to authorize a simple majority of state legislatures “to abrogate any action of Congress, [the] President, or administrative agencies of the United States.” Brianna Kraemer, Official Proposals Passed at the Simulated Article V Convention, Convention of States Action (Aug. 8, 2023), https://conventionofstates.com/news/official-proposals-passed-at-the-simulated-article-v-convention [https://perma.cc/PS5C-25R4]; see also Kowal & Codrington, supra note 12, at 257–58 (discussing similar proposals passed in a 2016 simulation).
[34]. Grace Panetta & Brent D. Griffiths, Republicans’ Next Big Play Is to ‘Scare the Hell out of Washington’ by Rewriting the Constitution. And They’re Willing to Play the Long Game to Win., Bus. Insider (July 31, 2022), https://www.businessinsider.com/constitutional-convention-conservatives-republicans-constitution-supreme-court-2022-7 [https://perma.cc/R8ZB-QVDJ].
[35]. Lessig, supra note 32. Virtually alone among prominent progressive scholars writing today, Lessig takes seriously not only the possibility—and possible desirability—of an Article V convention but also the imperative to develop rules in advance. He proposes that: (1) state legislatures convene “assemblies” of “randomly chosen, but representative” citizens to generate recommendations for their convention delegates; (2) state legislatures bind delegates, via judicially enforceable statutes, to implement those recommendations at the convention; and (3) the convention adopt rules (or perhaps be forced by Congress to adopt rules; Lessig is unclear on this) requiring that any amendment proposal garner supermajority support to be sent to the states for ratification. Id. This ingenious proposal seems to me to suffer from a lack of grounding in American legal history or convention tradition—and thus to lack the sociological legitimacy and practical familiarity that the common law of constitutional conventions can supply.
[36]. See, e.g., Convention of States Action, Pocket Guide: The Founders’ Constitutional Plan for We the People to Secure America’s Future 18–28, https://content.conventionofstates.com/cosaction-prod/public/pocket_guide_digital.pdf [https://perma.cc/4L9Y-UFQF]; Robert G. Natelson, Is the Constitution’s Convention for Proposing Amendments a “Mystery”? Overlooked Evidence in the Narrative of Uncertainty, 104 Marq. L. Rev. 1, 12–46 (2020); Article V Process, Indep. Inst. (2023), https://articlevinfocenter.com/article-v-process/ [https://perma.cc/EL6J-9XRB].
[37]. See sources cited supra note 36.
[38]. Id.
[39]. See John R. Vile, Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution 24–37 (2016) (reviewing these debates and highlighting their failure to address such details); Kurt T. Lash, Rejecting Conventional Wisdom: Federalist Ambivalence in the Framing and Implementation of Article V, 38 Am. J. Legal Hist. 197, 211–14 (1994) (explaining that “Article V itself was remarkably uncontroversial” and was discussed in any depth only in the Virginia ratification convention); cf. David E. Pozen & Thomas P. Schmidt, The Puzzles and Possibilities of Article V, 121 Colum. L. Rev. 2317, 2321–22, 2328–38, 2384–87 (2021) (highlighting the limits of Article V textualism and originalism more generally). There is evidence to suggest that at least some Framers may have understood Article V to permit state legislatures to limit the substantive scope of a convention to a single issue or set of issues, although this proposition is hotly contested. See Caplan, supra note 12, at 138–58; Vile, supra, at 32–34, 173–77. Notably, the leading originalist scholarship in support of this proposition appears to concede that other issues regarding how a convention would run, including delegate selection and voting rules, were not resolved at the Founding. See Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comment. 53, 106–07 (2012) (cataloguing open questions that Congress would have to address in calling a convention).
[40]. See, e.g., Natelson, supra note 36, at 30–38. Natelson contends that similar protocols were followed by a smattering of interstate meetings in the 1800s and 1900s, including the Nashville Convention of slave states in 1850 and the Colorado River Compact Commission of 1922. Id. at 38–39 & nn.215–17. It is unclear why these meetings—none of which had the authority to initiate constitutional change—ought to count in the originalist calculus or, for that matter, in any constitutional calculus. Natelson also highlights the Supreme Court’s passing reference to a “convention of the states” in Smith v. Union Bank. 30 U.S. 518, 528 (1831); Natelson, supra note 36, at 14–17. Union Bank was a choice-of-law case that had nothing to do with Article V. In addition to being dicta, this obscure passage does not even clearly refer to an Article V convention, rather than an interstate compact under Article I.
[41]. See, e.g., Natelson, supra note 36, at 14 (“In-state conventions . . . were elected assemblies in which majority per capita voting was the rule of decision.”).
[42]. See Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 484 (2012) (“The United States of 1785 looked rather like today’s United Nations, whose General Assembly bears an uncanny resemblance to the Confederation Congress: one-state, one-vote, in a body that declares a lot and does much less, where member states sometimes obey and sometimes don’t.”).
[43]. Cf. William A. Woodruff, Caution and the Constitution: Should There Be an Article V Convention for Proposing Amendments?, 17 Charleston L. Rev. 25, 45 (2022) (“If the Framers intended a ‘convention for proposing amendments’ to be a . . . ‘convention of the states,’ under the management of the state legislatures, surely they would have said so. And Madison would not have expressed his concerns over the vagueness of this new creation.”).
[44]. See Lepore, supra note 1; cf. David Singh Grewal & Jedediah Purdy, The Original Theory of Constitutionalism, 127 Yale L.J. 664, 681–91 (2018) (discussing “the original ideal of popular sovereignty” and its emphasis on institutional mechanisms, such as special conventions, “by which the people could act in a majoritarian fashion to establish, reject, or revise fundamental law”).
[45]. See Lawrence B. Solum, Originalist Methodology, 84 U. Chi. L. Rev. 269, 294–95 (2017); see also David E. Pozen & Adam M. Samaha, Anti-Modalities, 119 Mich. L. Rev. 729, 778 (2021) (explaining that “[t]o resolve disputes in [the construction] zone, many originalists acknowledge that decisionmakers have no choice but to rely on normative judgments” based on nonoriginalist criteria).
[46]. I take this to be, more or less, the position of Lessig and Vile. See Vile, supra note 39, at 108 (suggesting that, given unresolved uncertainty as to the Framers’ intent, the Convention Clause should be interpreted in a manner “likely to lead to the best outcomes”); supra note 35 (discussing Lessig’s novel proposal).
[47]. Organizers of the “convention of the states” reject the traditional view that Congress has power, under Article V and the Necessary and Proper Clause, to set rules on delegate selection, composition, and qualifications, among other matters. See, e.g., Convention of States Action, supra note 36, at 27 (“Congress’s role is limited to issuing the ‘call’ which sets the date, time, and location of the meeting once it receives 34 applications for a Convention on the same topic. . . . It has no authority beyond that.”). Even under the traditional view, there are hard questions about the outer limits of congressional control; the design of Article V’s convention mechanism as a means to bypass Congress in proposing amendments suggests that Congress should facilitate rather than dominate any conventions it calls. I take no position on these questions in this Essay. One virtue of the common law methodology is that, in the absence of a convention implementation statute, it provides some basic ground rules about how an Article V convention ought to work.
[48]. The value of clarifying amending procedures ex ante is a familiar refrain in the general literature on constitutional reform. See, e.g., Eur. Comm’n for Democracy Through L. (Venice Comm’n), Final Draft Report on Constitutional Amendment Procedures 46 (2009), https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL(2009)168-e [https://perma.cc/9PUH-C8SZ] (“Rules and procedures on constitutional amendment should be as clear and simple as possible, so as not to give rise to problems and disputes of their own.”).
[49]. What exactly qualifies as a constitutional convention may be debated in borderline cases. Some scholars count 233 such conventions at the state level since the Declaration of Independence. See, e.g., John J. Dinan, The American State Constitutional Tradition 7–9 (2006). Others count 236. See, e.g., State Constitutional Conventions Since 1776, State Const. Convention Clearinghouse https://concon.info/state-data/590-2/ [https://perma.cc/K8AC-V4UL].
Constitutional conventions are “the only method of constitutional revision provided for by all 50 states.” Elmer E. Cornwell, Jr., Jay S. Goodman & Wayne R. Swanson, State Constitutional Conventions: The Politics of the Revision Process in Seven States 13 (1975). In approximately four-fifths of the states, the constitution specifies a procedure for calling a convention; in the remainder, it is “settled law that the people have the inherent legal power to call a convention by ratifying a legislatively authorized ballot provision” to such effect. William Partlett, The American Tradition of Constituent Power, 15 Int’l J. Const. L. 955, 982 (2018). The last state constitutional convention occurred over thirty years ago, leaving us in the longest convention “drought” in U.S. history. J.H. Snider, Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other US States, 1776–2015, 6 Am. Pol. Thought 256, 259 (2017).
[50]. Alternatively, and in recognition of the fact that not all these principles and procedures have been developed or applied by courts, what I describe as the common law of constitutional conventions might be understood as a body of customary law, general law, or conventions (in the sense of norms) of constitutional conventions. Nothing important hangs on the label.
[51]. See, e.g., Atkins v. Virginia, 536 U.S. 304, 312 (2002) (discussing cases in which the Court has relied, in part, on state legislation to determine which punishments are impermissibly excessive).
[52]. See, e.g., Obergefell v. Hodges, 576 U.S. 644, 663 (2015) (“[T]he highest courts of many States have contributed to this ongoing dialogue [on the federal constitutional status of same-sex marriage] in decisions interpreting their own State Constitutions.”); Washington v. Glucksberg, 521 U.S. 702, 710 (1997) (stating that “[w]e begin, as we do in all [substantive] due process cases, by examining our Nation’s history, legal traditions, and practices,” and then turning first to contemporary state laws); Burnham v. Superior Ct., 495 U.S. 604, 619 (1990) (plurality opinion) (concluding, with reference to state practice, that “jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system”).
[53]. To the extent that more clarity or certainty is desired, Congress might try to codify and flesh out some of the common law norms in a convention implementation statute. The Senate passed two such bills in the 1970s, but neither reached the House floor. See Thomas H. Neale, Cong. Rsch. Serv., R42589, The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress 19 (2016). On the wide variation in state practice regarding the details of convention staffing, convening, financing, and operating, see Gerald Benjamin, Constitutional Amendment and Revision, in 3 State Constitutions for the Twenty-first Century 177, 194–200 (G. Alan Tarr & Robert F. Williams eds., 2006).
[54]. See Vile, supra note 39, at 140. Some form of random selection might still be used for any citizen assemblies that are asked to produce recommendations for convention delegates, even if the delegates themselves are selected in special elections.
[55]. Marshfield, supra note 15, at 2575 (footnote omitted).
[56]. See Dinan, supra note 49, at 12 & n.15; Robert F. Williams & Lawrence Friedman, The Law of American State Constitutions 415–16 (2d ed. 2023).
[57]. See Dinan, supra note 49, at 12 & n.16; Janice C. May, State Constitutions and Constitutional Revision, 1992-93, in 30 Council of State Gov’ts, The Book of the States 2, 4 (1994); Snider, supra note 49, at 259 n.1, 269; see also Snider, supra note 49, at 264 tbl.3 (listing the New York convention of 1777 as the only other constitutional convention in U.S. history to have its membership controlled by the legislature).
[58]. See, e.g., Albert L. Sturm, The Procedure of State Constitutional Change—With Special Emphasis on the South and Florida, 5 Fla. St. U. L. Rev. 569, 582 (1977) (describing the popular election of delegates to constitutional conventions as “universally required”). Sturm identifies two cases in which ex officio or appointed delegates were interspersed with the elected delegates. Id. at 582 n.70.
[59]. See Vladimir Kogan, Lessons from Recent State Constitutional Conventions, 2 Cal. J. Pol. & Pol’y, no. 2, 2010, at 1, 7–12 app. tbl.1 (identifying one convention since 1970, held by Montana in 1971–1972, that used partisan elections for delegate selection).
[60]. Snider, supra note 49, at 265; see also Appendix: Mechanisms for State Constitutional Change, in 1 State Constitutions for the Twenty-first Century 197, 198 (G. Alan Tarr & Robert F. Williams eds., 2006) (“Even in the absence of [legal] restrictions, many convention delegates have never served in the state legislative or executive branches.”); G. Alan Tarr, For the People: Direct Democracy in the State Constitutional Tradition, in Democracy: How Direct? Views from the Founding Era and the Polling Era 87, 95 (Elliott Abrams ed., 2002) (explaining that “the membership of [nineteenth-century constitutional] conventions tended to mirror the populace of the states” and that “most” delegates “were not professional politicians”).
[61]. See Vile, supra note 39, at 234 n.75.
[62]. See John Dinan, State Constitutional Politics: Governing by Amendment in the American States 31, 33 (2018) (discussing “legislators’ long-standing reluctance to support convention calls” and their tendency to view “conventions as competitors”); cf. Snider, supra note 49, at 265 (stating that “[c]onventions whose membership overlaps with that of the legislature” to any significant extent “now lack democratic legitimacy”).
[63]. 377 U.S. 533, 568 (1964). Dissatisfaction with Reynolds prompted one of the last big state legislative pushes to call an Article V convention—a failed effort that ultimately did more to reinforce than to counteract the primacy of one-person-one-vote in our constitutional culture. See supra note 25 and accompanying text.
[64]. See Richard Briffault, Electing Delegates to a State Constitutional Convention: Some Legal and Policy Issues, 36 Rutgers L.J. 1125, 1127–28 (2005) (reviewing case law).
[65]. Marshfield, supra note 15, at 2576 (citing Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America 131–54 (1997)).
[66]. See Nicholas O. Stephanopoulos, The Sweep of the Electoral Power, 36 Const. Comment. 1, 35 (2021).
[67]. See, e.g., Benjamin, supra note 53, at 197 (“Legislative districts are frequently specified for use in delegate selection.”). The sixth edition of the National Municipal League’s model state constitution, published in 1963, included a requirement that one convention delegate “be elected from each existing legislative district.” Nat’l Mun. League, Model State Constitution § 12.03(c) (1963).
[68]. See Dinan, supra note 49, at 8 tbl.1-1.
[69]. See N.H. Const. art. 100(b) (providing that convention “delegates shall be chosen . . . in the same manner and proportion as the representatives to the [state legislature] are chosen”); R.I. Const. art. XIV, § 2 (“The number of delegates shall be equal to the number of members of the house of representatives and shall be apportioned in the same manner as the members of the house of representatives.”); Tenn. Pub. Acts, ch. 848, § 3 (1976) (“There shall be ninety-nine (99) delegates, with one to be elected by the qualified voters of each representative district from which members are elected to the House of Representatives of the Tennessee General Assembly, as such districts exist at the time delegates are elected to the Constitutional Convention.”).
[70]. Am. Bar Ass’n, Special Const. Convention Study Comm., Amendment of the Constitution by the Convention Method Under Article V, at 10, 33–37 (1974). Note that even if an Article V convention were to comply with one-person-one-vote, the ratification process for any amendments it proposed would violate this principle, given the equal decisional weight all states enjoy in that process. See supra note 7 and accompanying text. This federalism-protective feature of Article V only deepens whatever democratic and equal protection imperative exists to use one-person-one-vote in the delegate selection and voting stages.
[71]. See, e.g., Caplan, supra note 12, at 120; Wheeler, supra note 6, at 33; Arthur E. Bonfield, The Dirksen Amendment and the Article V Convention Process, 66 Mich. L. Rev. 949, 989–91 (1967). In the early 1970s, the U.S. Senate twice voted unanimously for bills that would have deviated from one-person-one-vote by giving each state two elected delegates-at-large—just like the Senate itself, mirabile dictu—in addition to one elected delegate from each House district. Federal Constitutional Convention Procedures Act, S. 1272, 93d Cong. (1973); Federal Constitutional Convention Procedures Act, S. 215, 92d Cong. (1971).
[72]. Richard L. Hasen, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore 81 (2003).
[73]. Pamela S. Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 Stan. L. Rev. 731, 741 (1998).
[74]. Marshfield, supra note 15, at 2575, 2577. Marshfield states without qualification that “[a]ll state conventions have been unicameral.” Id. at 2577; accord Albert L. Sturm, Thirty Years of State Constitution-Making, 1938–1968, at 92 (1970) (“Indigenous to the United States, [constitutional conventions] are universally unicameral.”). Vile states that “[m]ost conventions in American history . . . have been unicameral bodies,” without citing any counterexamples. Vile, supra note 39, at 153. Perhaps the closest thing to a counterexample is the Minnesota constitutional convention of 1857, in which the Democratic and Republican delegates met separately before forming a compromise committee. See Mary Jane Morrison, The Minnesota State Constitution: A Reference Guide 1–2 (2002).
[75]. See, e.g., James F. Fishkin, Deliberative Democracy and Constitutions, 28 Soc. Phil. & Pol’y 242, 242 (2011) (contrasting constitutional conventions, which “offer deliberation by elites or representatives,” with referenda, which “offer a nondeliberative process for approval by the people”).
[76]. Marshfield, supra note 15, at 2578.
[77]. Some of the state conventions that ratified the Twenty-First Amendment were not deliberative in any meaningful sense. See Vile, supra note 39, at 175. But this was a special case in which the conventions were called to approve a federal amendment proposed by Congress, rather than to propose revisions to a state constitution. And even still, this development “was controversial” at the time “because it broke with the historical understanding of a convention as an authentically deliberative body.” Pozen & Schmidt, supra note 39, at 2359.
[78]. See Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 742–47 (2011); see also Woodruff, supra note 43, at 45 (asserting that “there is no debate over the fact that an Article V convention for proposing amendments would be a deliberative body”).
[79]. Boris I. Bittker, The Bicentennial of the Jurisprudence of Original Intent: The Recent Past, 77 Calif. L. Rev. 235, 259 (1989).
[80]. See Dinan, supra note 49, at 18–28.
[81]. Sturm, supra note 74, at 74; cf. Survey of the 14 States with Periodic Constitutional Convention Referendums, State Const. Convention Clearinghouse (Aug. 24, 2014), https://concon.info/state-data/u-s-features/ [https://perma.cc/99R2-QG6V] (indicating that of the fourteen state constitutions that provide for periodic referenda on whether to call a convention, only one (Missouri’s) expressly instructs that convention sessions be held with open doors).
[82]. See generally David E. Pozen, Seeing Transparency More Clearly, 80 Pub. Admin. Rev. 326 (2020); David E. Pozen, Transparency’s Ideological Drift, 128 Yale L.J. 100 (2018).
[83]. See G. Alan Tarr, Understanding State Constitutions 70 (1998).
[84]. Id. at 70 n.37; see also G. Alan Tarr & Robert F. Williams, Getting from Here to There: Twenty-First Century Mechanisms and Opportunities in State Constitutional Reform, 36 Rutgers L.J. 1075, 1081 (2005) (“In every state, convention proposals . . . are now subject to ratification via referendum.”).
[85]. See Theodore G. Gronert, The Louisiana Constitutional Conventions of 1913 and 1921, 4 Sw. Pol. & Soc. Sci. Q. 301, 317 (1924). A large majority of Louisiana voters authorized this arrangement when they approved the convention call a year before. See Clarence A. Berdahl, The Louisiana Constitutional Convention, 15 Am. Pol. Sci. Rev. 565, 566 (1921).
[86]. See Francis H. Heller, Limiting a Constitutional Convention: The State Precedents, 3 Cardozo L. Rev. 563, 565–75 (1982); Henry D. Levine, Note, Limited Federal Constitutional Conventions: Implications of the State Experience, 11 Harv. J. Legis. 127, 136–41 (1973).
[87]. See Williams & Friedman, supra note 56, at 435–36; Heller, supra note 86, at 575–79. It is far from clear that state legislatures have a similar power to constrain conventions. “With one arguable exception,” Levine wrote in 1973, “no state court in over 60 years has reached any conclusion other than that a convention is not bound by legislative restrictions which apply to the work of such organ, but that the mandate of the people, either in calling the convention or in approving the convention act, is controlling.” Levine, supra note 86, at 141 (internal quotation marks omitted); see also id. at 141 n.70 (collecting cases).
[88]. See Partlett, supra note 49, at 981–82 (“The details of th[e] convention call or the subsequent law creating the convention . . . limit the authority of the convention with one exception: A convention may propose constitutional changes that go beyond its limitations if these changes are later ratified by the people.”); Snider, supra note 49, at 263 (“[B]y the late twentieth century a consensus developed that voter ratification of a convention-proposed amendment might cure transgressions in allowed amendment subjects.”); Levine, supra note 86, at 152 (“[C]ourts have held that, even if a convention has exceeded proper limitations, general acceptance of its work . . . will legitimate the changes, shielding them from attack.”). Levine identifies deviations from this norm of judicial nonintervention, but none since 1918. Levine, supra note 86, at 153 n.116. As far as I am aware, the last time a court considered the validity of substantive limits on a convention after the convention’s proposals had been ratified by voters was in 1975. The Rhode Island Supreme Court dismissed the lawsuit as moot. See Malinou v. Powers, 333 A.2d 420 (R.I. 1975).
[89]. Professor Akhil Amar has famously proposed that the U.S. Constitution may lawfully be amended “outside Article V” by a nationwide referendum or comparable mechanism, although this remains a minority view. See generally Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043 (1988). This Essay is concerned with amendment by convention “inside” Article V.
[90]. Congress is expressly empowered by Article V to specify the mode of ratification—state legislatures or conventions—and has selected the convention option once, for the Twenty-First Amendment. See supra note 7; Pozen & Schmidt, supra note 39, at 2358–60.
[91]. See supra notes 36–38 and accompanying text. On the extreme democratic deficits in contemporary state legislatures, see generally Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733 (2021).
[92]. See Ctr. for Media & Democracy, Convention of State Politicians: Voters Have No Role to Play in the Right’s Vision of a Constitutional Convention 4 (July 2023), https://s3.documentcloud.org/documents/24042682/convention-of-state-politicians_digital.pdf [https://perma.cc/LG2A-CMLP] (“To date, 22 states have enacted resolutions or legislation detailing delegate selection procedures. In 18 of those states, the legislature as a whole or legislative leadership would pick the delegates.”).
[93]. This is the central thesis of Marshfield, supra note 15.
[94]. Lepore, supra note 1.
[95]. See Amber Polk, The Unfulfilled Promise of Environmental Constitutionalism, 74 Hastings L.J. 123, 129–65 (2022).
