Senior Director of State Fiscal Research
Nevada lawmakers yesterday unanimously rescinded the state’s past resolutions calling for a national convention to amend the U.S. Constitution. That’s important because other states — misled by arguments from the American Legislative Exchange Council (ALEC) and other groups — are calling for a convention, which would put at risk the cherished rights and freedoms that the Constitution provides and deepen the country’s wide divisions. Earlier this year, Arizona and Wyoming passed resolutions calling for a convention while Maryland and New Mexico — like Nevada — rescinded their convention calls.
The Constitution’s Article V provides two methods for amendment. The method used in all previous instances requires two-thirds of each house of Congress to approve an amendment, and then for three-fourths of the states to ratify it. The other method requires two-thirds of the states (34 states) to petition Congress for a convention to consider and propose amendments. Convention proponents claim that they’re close to reaching the 34-state threshold. Their count is questionable — in part because it includes some resolutions passed decades ago — but Congress may choose to accept it.
Contrary to ALEC’s claims, states can’t control a convention’s actions or outcomes. The Constitution gives no guidance on the operating rules, and there’s no precedent on which to rely because a convention has never been called under Article V. Yet much would be at stake. As constitutional scholar and Harvard Law School Professor Laurence Tribe has said, “what you’re doing is putting the whole Constitution up for grabs.” And in his last-known comment on the subject, the late Justice Antonin Scalia said in 2014, “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”
The only constitutional convention in U.S. history, in 1787, went far beyond its mandate. Charged with amending the Articles of Confederation, it instead wrote an entirely new governing document. It also changed the very rules of ratification, lowering the number of states needed to approve the new constitution.
A convention held today could set its own agenda under the influence of powerful interest groups. As former Chief Justice Warren Burger wrote, a “Constitutional Convention today would be a free-for-all for special interest groups.”
Our Constitution has served us well for over 200 years, and Americans across the political spectrum hold it dear. In the current environment, any constitutional convention would be hard fought and highly controversial — further dividing Americans rather than fostering unity. Nevada’s bipartisan decision to rescind the state’s past convention calls, supported by every member of both houses of the state legislature, is an important step toward protecting our country’s future.