In May, the Nevada legislature unanimously rescinded the state’s past resolutions calling for a national convention to amend the U.S. Constitution. In recent months, Lawmakers in Arizona and Wyoming passed resolutions calling for a convention while Maryland and New Mexico rescinded theirs. As a 2017 convention would be the first since 1787, there would be great uncertainty as there is no modern precedent for understanding the applicable rules of effectively operating it.
Article V of the United States the Constitution provides two methods for amendment. The more common method is that which has been used in every previous instance – two-thirds of each house of Congress must approve any constitutional amendment and three-fourths of the states must ratify it. The second method results from two-thirds of the states (34 states) petitioning Congress for a convention to consider and propose amendments.
In early February of 2017, Michael Leachman, the Director of State Fiscal Research Center on Budget and Policy Priorities, testified before both the Maryland Senate and Kansas House of Representatives urging its members to oppose a resolution for a constitutional convention to consider amendments to the Constitution. As mentioned, Maryland has rescinded its resolutions.
However, many special interest groups are calling for a convention despite the belief by legal scholars that they don’t realize the risk of such a monumental constitutional undertaking:
- Harvard Law School Professor Laurence Tribe gave this opinion regarding any modern-day constitutional convention: “What you’re doing is putting the whole Constitution up for grabs.”
- Justice Antonin Scalia made the following statement in 2014: “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”
- Former Chief Justice Warren Burger wrote, a “Constitutional Convention today would be a free-for-all for special interest groups.”
Proponents of a convention such as the American Legislative Exchange Council (ALEC) say that the 34-state threshold is approaching as more states pass resolutions, despite the fact that this number includes resolutions that were passed several years ago.
A convention may be dangerous to the future of the Constitution as it presently exists as the country’s governing document. The Constitutional Convention of 1787 exceeded its direct purpose, which was amending the Articles of Confederation. Instead, the drafters wrote a new document that went beyond amending the Articles.
The original convention changed the rules of ratification by lowering the number of states needed to approve the new constitution. There is no reason to believe that this may not happen again, which would thereby create a lower threshold for changing the Constitution moving forward in the 21st Century. Nevada’s bipartisan decision to rescind the state’s past resolutions for a constitutional convention, supported by each and every member of both houses of the state legislature, is an important step toward protecting the Constitution and any ensuing radical change resulting from a convention.
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