Guest Commentary

New constitutional convention could be detrimental to democracy

University of Missouri - Kansas City School of Law Professor Allen Rostron
University of Missouri - Kansas City School of Law Professor Allen Rostron

This year’s Constitution Day, Sept. 17, marks the 231st anniversary of the moment when delegates at Independence Hall in Philadelphia finished their work and signed off on their proposed new Constitution. Today, some people feel it’s time for America to have another constitutional convention. The idea finds support from some on the left and right sides of the political spectrum. But everyone should think carefully about the tremendous risks and uncertainties that would present.

The framers of the Constitution realized their document might need to be updated and revised at times, so in Article V of the Constitution, they provided two ways to amend it. Under the first method, a proposed amendment must be passed by two-thirds of each house of Congress, and then ratified by three-fourths of the states. All 27 of the Constitution’s amendments have been created through this process.

The second method would be triggered if two-thirds of state legislatures call for a convention to propose amendments. Any measure passed by the convention would take effect if ratified by three-fourths of the states. This means of amending the Constitution has never been used, but various efforts to bring about a convention are now underway.

The furthest along is a push for an amendment requiring the federal government to balance its budget. Supporters of that effort purport to have lined up 28 of the 34 states needed to call a convention on that issue.

Conservative groups are also pushing for conventions that would consider new restraints on federal authority and term limits for Congress. Liberal groups want a convention that would overrule Supreme Court decisions, such as Citizens United, that put limits on regulation of political expenditures and donations by corporations.

Whatever one thinks about these proposed amendments, trying to pass them through an Article V convention is a risky business. The Constitution does not specify how the delegates for such a convention would be chosen, how many delegates each state would have, what rules would apply at the convention or whether there would be any limits on what amendments the convention could consider. A convention that was called to address a specific issue, such as budget deficits, might propose changes to freedom of speech, the right to keep and bear arms, the Electoral College or anything else in the Constitution. There is no rule or precedent saying what the proper scope of the convention’s work would be.

Over the past century, Missouri’s General Assembly has passed about a dozen resolutions calling for an Article V convention, most recently in 2017 and 2018. While these resolutions attempt to specify limits on what topics the proposed convention could address, no one can be sure if those limits would be enforceable. Like the rest of us, Missouri legislators have no more than hopes and guesses about what the outcome of such a convention would be.

Liberals and conservatives may not agree on much these days, but many share concerns about the tremendous risks and potential chaos that could result from wading into such uncharted waters. Common Cause president Karen Hobert Flynn said calling for a constitutional convention is like opening Pandora’s box, for “once it’s open there will be no controlling where it goes.”

Or as conservative activist Phyllis Schlafly put it several decades ago, having a convention “means playing Russian roulette with our Constitution.” You hope the Constitution would survive it, but it doesn’t make sense to take such a risk with something so important.

The Constitution certainly isn’t perfect, but it’s served the country reasonably well for more than two centuries. This is why our representatives in the Missouri legislature should rescind all applications calling for a constitutional convention.

Allen Rostron is associate dean for students, the William R. Jacques Constitutional Law Scholar and a professor at the University of Missouri - Kansas City School of Law.