Radio host Mark Levin, a proponent of a slate of conservative amendments to the U.S. constitution, speaks at the 2015 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. Courtesy of Gage Skidmore via Wikimedia Commons.

The part of the Constitution that most desperately needs amending is the process for amending the Constitution. Article V of the world’s longest surviving written charter of government offers two paths to formal change, one all but moribund and the other dangerously unpredictable. Without a practical means of giving “We, the People” a larger contemporary role in updating our supreme law, constitutional change will continue to depend to an unwholesome degree on the interpretation of the sparse text by a handful of unelected jurists.  

A third of the way into its third century, the rarely amended U.S. Constitution seems to be losing its fans. Progressives bemoan a document that, at least in the hands of our current Supreme Court, protects gun ownership but not reproductive rights, that permits gerrymandering and unlimited political expenditures but vanishingly few remedies for systemic racial harms. The Constitution’s entrenchment of small-state power, both in the malapportioned Senate and in the Electoral College, has helped to forestall progressive legislative initiatives combating food insecurity, gun violence, and climate change despite huge support for such legislation among Americans.  

On the right, and despite judicial victories unthinkable a generation ago, many conservatives voice their own litany of constitutional complaints. Congress, seen through a conservative lens, has too much power to regulate and to spend. States have too little authority to resist federal laws they find objectionable. An unborn fetus is not a “person” protected by the Fourteenth Amendment. A Constitution that protects same-sex marriage but allows limits on school prayer and gun ownership is not a right-winger’s dream document. 

Yet despite our season of constitutional discontent, few observers see much prospect that the Constitution will be amended in the near term following either of the formal procedural frameworks bequeathed to us by the Framers in Article V. That article sets forth two mechanisms for launching a formal proposal. Congress may propose an amendment “whenever two thirds of both houses shall deem it necessary.” Alternatively, Congress “shall call a convention for proposing amendments” if Congress receives “the application of the legislatures of two thirds of the several states.” Either way, if an amendment is proposed, it becomes part of the Constitution only when ratified either by legislatures or by conventions in three-fourths of the states. Congress prescribes whether state legislatures or conventions will be the deciders. So far, state conventions have been used for ratification only once—to repeal prohibition via the Twenty-First Amendment

That we have only 27 formal amendments—only 17 since the adoption of the Bill of Rights and none proposed by modern authors since 1971—is not for any want of ideas. Between 1791 and 2019, members of Congress introduced more than 11,000 proposed amendments to the Constitution. Yet Congress has put forward only 33 proposed amendments by the requisite two-thirds vote. Six of those fell short of the needed number of state endorsements—although controversy exists with regard to the status of one of them, the Equal Rights Amendment. (I am personally a fan of a pro-democracy amendment I authored, but which, to my knowledge, has not yet even found a legislative sponsor.) 

Given a Congress seemingly unable to enact even popular legislative proposals—for example, granting permanent legal status to undocumented immigrants who came to the United States as children—the prospect of mustering supermajority votes in both chambers seems fanciful, at best. As for gathering state petitions to call a constitutional convention—the first since the summer of 1787—we may or may not already be close. A powerful 2022 book by former senator and current American Constitution Society President Russ Feingold and attorney Peter Prindiville both explains the uncertainty in the count of state applications and reveals how far-right activists are organizing ambitiously in anticipation of a possible convention. (Full disclosure: I have been an admiring colleague of Russ Feingold’s in my capacity as a member of the American Constitution Society’s national board.) 

Uncertainty regarding the number of states applying for a convention is rooted in the absence of any agreed-upon legal framework to guide the counting process. By 1967, 32 states—egged on by Senate Republican Leader Everett Dirksen—had applied for a convention to undo the Supreme Court’s reapportionment decisions, which required a restructuring of state legislative districts to conform to the principle of “one person, one vote.” Iowa became a 33rd applicant in 1969, but no other state joined, and Dirksen died unexpectedly in September of that year. For his part, then-Senator Robert F. Kennedy argued that disparities in the wording of the applications were sufficiently different that they couldn’t all be seen as having agreed on the same measure. And other Senators urged yet other grounds for invalidating petitions. Only the campaign’s defeat in Wisconsin—the one other state to take up the matter—relieved Congress of the need to resolve the counting issue. 

Less than a decade later, however, thirty-two states again applied for a convention—this time, to secure a balanced budget amendment to the Constitution. Their movement was energized by the overwhelming passage in California of Proposition 13, which dramatically cut property taxes in that state. Between 2009 and 2021, according to Feingold and Prindiville, at least 23 states made 47 new applications under Article V, calling for a constitutional convention. The movement picked up steam when the right-wing lawyer and radio pundit Mark Levin published his 2013 book The Liberty Amendments. In it, he argued that the Constitution should be amended to impose or authorize congressional and judicial term limits, state legislative override of federal actions, sweeping limitations on congressional regulatory power, onerous spending and taxing limitations, and an end to the popular election of senators, which was established by the Seventeenth Amendment in 1913. 

Although none of these campaigns yielded 34 consistent applications, Scott Walker, the former Republican governor of Wisconsin, insists that the two-thirds state threshold has been reached. In addition to the 23 states that have forwarded applications in recent years, earlier applications from an additional five states seeking a balanced budget amendment have not been rescinded, arguably bringing the total to 28. Some conservative activists have added that, albeit remote in time, six other states have filed applications that were sufficiently broad in scope to be counted with the others. On one hand, the claim seems absurd. The six include applications left over from the Progressive Era, two never-rescinded applications from Illinois and Kentucky that petitioned for a convention to avert the Civil War, and a 1789 application from New York to call a convention for the drafting of a bill of rights. But it is Congress that gets to decide which applications count, and there is no Article V language to channel their discretion. It bears keeping in mind that the ratification process for our Twenty-Seventh Amendment, preventing changes in congressional salaries from taking effect prior to the next election after their legislative adoption, started in 1789 and concluded in 1992. 

What makes a convention dangerous is a similar absence of any agreed-upon rules regarding the convention’s operation. The right-wing Convention of States Project (CSP) is behind efforts to lull states into agreeing upon what, to some, may appear a well-disciplined proposal. Its website claims: “Our convention would only allow the states to discuss amendments that ‘limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.’”  

However, there is no guarantee that participants at a “limited” convention would be bound by the so-called limitation. Our one historical precedent, the 1787 meeting in Philadelphia, was called by the Continental Congress “for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several [state] Legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.” Remember how that worked out? 

Moreover, the conservative CSP is advocating rules that maximize the prospects for the Constitution to be amended in accord with the agenda of the nation’s far-right minority. The very fact it frames the desired meeting as a convention of the “states” is dangerous. By casting the amendment process as a collaboration of states rather than as a deliberation among “We, the People,” CSP hopes to lay the groundwork for a convention in which gerrymandered legislatures pick delegates, every state gets one vote, and a majority of 26 states suffices for potential amendments to move forward. There are currently 22 states classified as Republican “trifectas,” in which the GOP controls both legislative chambers and the governor’s office. (Democrats hold 17.) Assuming like-minded delegations emerge from these GOP-dominated states, attracting four more states for a simple majority would be a hugely easier political task than attracting the eight more states that had been needed to call a convention in the first place. 

Feingold and Prindiville provide a sobering account of the CSP’s sophisticated plan to prepare its troops for a constitutional convention. In 2016, over 100 state legislators from around the country gathered in Williamsburg, Virginia, for a simulated convention at the Williamsburg Lodge hotel. (Videos of the event are available on YouTube, complete with some colonial-era cosplay; to be fair, I was able to spot at least one African American delegate.) By all appearances, the delegates—however united in their underlying value commitments—engaged in serious and good-faith debate about the precise details of their government-crippling proposals. But, as Feingold and Prindiville argue, at least as important as the convention’s substantive output was the strategic head start it provided would-be conventioneers on the right. “The dress-rehearsal convention had crafted a competitive advantage, allowing conservative activists to study how a convention would work under real-life conditions before anyone else, helping them prepare an end-run once a real convention is called,” the authors note. “They studied the key procedural pressure points and the potential pitfalls to avoid.” 

Progressives may take comfort in the reality that even a wildly malapportioned constitutional convention can do no more than propose amendments. Ratification by 38 states would still be needed to inscribe those proposals into the Constitution. But anything that comes out of an event as momentous and nearly unprecedented as a 21st-century constitutional convention will have exaggerated potential to move the needle on what would be considered “reasonable” constitutional change both in the present and in years to come. What looks loony today may eventually look moderate. The danger is real. 

Feingold and Prindiville urge that Article V be replaced with an “amendment mechanism that provides clear procedure, fosters open and democratic debate, and places final authority for constitutional change in the hands of the People, not partisan intermediaries like state legislatures.” None of the 50 state constitutions are as difficult to amend as the federal Constitution. Indeed, some may offer sound models or at least helpful first drafts of what an Article V successor would look like. For example, each state but Delaware, the District of Columbia, and the three U.S. territories provides a popular vote to ratify constitutional change. Some have periodic votes on whether to call new state constitutional conventions, with delegates also elected by voters. As a result, and in sharp contrast to the federal pattern: “The states have frequently returned to constitutional principles, amending their governing charters and, in some cases, replacing them entirely by popular vote.” 

To create some such possibility at the federal level, Feingold and Prindiville argue that Congress should create a bipartisan commission charged with studying constitutional amendment processes and crafting a proposal that Congress might advance to the states. Achieving such reform would be no easy task. But it does not seem unrealistic to imagine that Americans across the ideological spectrum would welcome the chance to re-center “We, the People” as the engine of constitutional change. A more detailed, rule-bound, yet people-centered version of Article V, Feingold and Prindiville say, could afford our amendment process “the legitimacy a modern, twenty-first-century democracy should require for constitutional reform.” 

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Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane