Friday, July 05, 2024

Progressives Should Support a National Constitutional Convention: Answering the Doubters

Guest Blogger

John Davenport

During the last eight years, a radical antifederalist movement has been promoting the idea of calling a new constitutional convention – and scaring liberal and centrist political leaders and organizations along the way. This “convention of states” (CoS) movement, as critics have noted, is funded by Koch Brothers money through ALEC; it aims to destroy federal capacities to steer the economy and hold corporations to basic standards. Backed by Federalist Society lawyers, this movement was created by Texas governor Greg Abbott, former Republican Senator Rick Santorum, and their allies to turn cronies in red state capitols across the nation into convention delegates. They want a convention that will pass a balanced budget requirement, abolish the income tax, and gut the federal government’s powers – although, as I’ve argued in The Democracy Amendments, the principle behind the enumeration of federal powers would today actually entail an expansion of federal authorities to secure national public goods. With astonishing arrogance, the CoS organizers hope to rig a convention so it can discuss only their proposals. 

In this circumstance, it is not surprising that leading Democratic politicians, progressive legal scholars, and centrist or center-left groups like Common Cause have portrayed a new convention called under Article V of the 1787 Constitution as an anathema that would destroy what is left of the federal system sustaining the United States. They have persuaded Democratic-led state governments in at least nine states such as New Jersey, Maryland, and New York to withdraw calls for a national convention that their statehouses issued years ago in hopes of amending the Constitution to allow election spending limits, or to create constitutional voting rights, or to permit public funding of religious schools. In fact, “conventionphobia” – David Pozen’s apt term – has become the near- consensus position among most American progressives (although California Governor Gavin Newsom recently called for a convention to propose a gun control amendment). But, as I will argue, conventionphobia results from wishful thinking about our ordinary legislative process, paranoia about conservative amendment aims, and lack of sorely needed vision. Indeed things are about as bad as they could be in recent progressive thought about holding a new constitutional convention.

I. First, the self-deception. The Common Cause Consensus (CCC), as I’ll label it for convenience, still denies that amendments are needed to solve our problems – even as federal gridlock worsens under the pressures of extreme and self-reinforcing political polarization, and popular frustration drives ever more confused people towards demagogues like Donald Trump. Somehow the fantasy persists that, as David Super put it in a Newsweek exchange last summer, that once we persuade more people to vote Democratic, “the Trumpist threat will fade away and enacting most of our program will become relatively easy.” This is despite the far-right restricting registration and voting access in a majority of states, and threatening to select electors directly in state legislatures if the presidential vote does not go their way; and despite the advent of AI-aided gerrymandering that empowers extreme primary voters to control the House, while the increasing number of Americans registered “independent” can cast their vote for third party candidates only by becoming spoilers likely to help Trumpist candidates. And despite a filibuster that has prevented enactment of the voting rights laws needed to overcome these anti-democratic barriers – and a Court likely to rule such laws unconstitutional if they ever do pass. As Pozen has argued in a California Law Review response to Jill Lepore – another progressive who fears a convention – numerous overlapping features of our current constitutional text structurally impede progressive goals. 

Suppose, then, that events during a new Trump presidency push more progressives to recognize that amendments are indispensable. Super, one of the most vocal among progressive critics of the convention idea, wrote on this blog last February that Congress might give us “some genuinely useful amendments,” even if not dramatic ones. Unfortunately, that is fantasy. Today’s ultra-polarized Congress could never muster two-thirds of both chambers even for no-brainer amendments – such as allowing immigrants naturalized over 15 years ago to run for president, or prohibiting anyone who would be over age 80 on inauguration day from running for president, or outlawing self-pardons – that over 80% of Americans would support. The same Equal Rights Amendment that passed Congress in the 1970s would not pass today. Congress has even stalled an amendment devised by a bipartisan panel of experts to provide emergency continuity following an attack on Congress itself. No, a convention really is our only hope for even those simple amendments that could restore the average voter’s hope in American democracy’s self-corrective potential. 

II. Next, the paranoia. Super is correct in his August 2023 Newsweek editorial that far-right groups hope to use a convention to destroy federal powers to provide social guarantees, protect the environment and public health, regulate corporations, and limit skyrocketing inequalities in wealth. But without constitutional reform, today’s radicalized Supreme Court looks set to accomplish much of this agenda by itself, sometimes by invoking vague Tenth Amendment language. Its gutting of administrative interpretation powers by overturning Chevron is only the most recent step in limiting regulative oversight. 

When responding to Jonathan Kowal in the Newsweek exchange, Super argued that state laws will let 29 Republican-dominated state governments hand-pick MAGA convention delegates to force through extreme amendments on a one-vote-per-state basis. He forgets that, as Kowal argued, Congress has a big role to play here. It can assert its authority to (a) mandate popular elections of non-partisan delegates to the new convention; (b) establish some proportional relation between state populations and their number of voting delegates, and (c) decide that in the convention, final votes to pass amendment proposals onto the states require a simple majority of invididual delegates. The federal law determining how a national convention should work must supersede state laws – and that law could say explicitly that federal courts have no jurisdiction over the rules Congress lays down on this topic. 

Re (a), there are plenty of grounds for resisting CoS pretenses that state governments can or should entirely determine this process. As John Vile argues in his insightful 2016 book, Convention Wisdom, if state legislators control the convention calls and later ratification of the convention’s proposals, they should definitely not also fill the convention itself: checks and balances are essential within the Article V convention process (p.146). Vile here develops Walter Dellinger’s famous argument that the framers did not want states to enact amendments without the intervention of “a national forum,” which is the convention (p.105). 

So I follow Lessig and Pozen in holding not only that apportioned delegates should be chosen in special elections, and they should not be identified with political parties on the ballots – although I am open to Levinson’s suggestion to select delegates from each state by lottery from a qualified pool of citizens, as long as they could each take one non-voting expert with them (compare Vile p.140). On the former option, (i) delegates should be elected at-large statewide to avoid gerrymandering of delegate districts, and (ii) on ranked-choice ballots to enable automatic runoffs – as in Alaska’s recent federal elections. This handles large numbers of candidates well and should produce more centrist delegates overall. 

Consider also Pozen’s point that for a century, state legislators have been declining as a percentage of those elected to state constitutional conventions. For a national convention, we should mandate in the enabling federal law that delegates (iii) not have held any government job within the last 10 years, and (iv) be disabled from holding any government job – at any level – for a decade after the convention. Such requirements would be wildly popular with most of the American public and reduce the danger of political elites and party bosses dominating a national convention. (v) The enabling law could also ban all campaign donations over $50 per individual donor to candidates for delegate seats, limit spending by candidate campaigns – and exempt this from the Court’s jurisdiction – to reduce the danger of dark money influences (see Super’s September 2018 post on this blog). (vi) Mandating that the convention operate in closed session with official records of its proceedings kept secret for 20 years can further reduce the potential for bribery. 

Re (b), as Vile notes, larger population states are extremely unlikely to issue calls for a convention if there is no apportionment of voting power to state populations within the enabling law (p.121). California cannot have the same vote as Wyoming; Texas also deserves a lot more say than Vermont on what amendments get proposed. Moreover, because “states already have equal weight in the ratification process” (p.138, p.135), small states can hardly demand to get the same vote as large states within the convention stage too. 

However, there is no need for a close proportion of delegates to state populations, which would make the convention too large. I suggest a number of delegates for each state equal to one third of its presidential electors, rounding all fractions down – with two delegates added for Puerto Rico and one for Washington, DC. On a quick calculation, this would result in 167 elected delegates, which is a number small enough to facilitate serious deliberation (compare Vile, p.138). 

Re (c), it may be tempting to think that requiring some supermajority of delegates – or even of state delegations – is needed to ensure compromise amendments that enough states will probably ratify. This is a mistake: the biggest problem will be getting enough delegates in the convention to compromise and reach simple majorities on any very significant constitutional reforms. Vile rightly warns that supermajority requirements risk causing the convention to fail, resulting in “public disillusionment” (p.116). Delegates, considering the enormous historical reputation they each have at stake, will already be unlikely to pass extremely partisan proposals unless they are mere rubber stamps for MAGA statehouses – which the special election of nonpartisan delegates insulated from monetary incentives prevents. Citizen-delegates conscious of the weight of history, as they retread Madison’s and Sherman’s steps, will be a far less polarized group then our Congress (p.128): they will want to craft ratifiable amendments, not extreme scorched earth proposals. 

As path dependency analyses could predict, proposals that pass a convention by slim simple majorities could well get ratified if large percentages of the general public likes them, because passage out of convention carries a huge threshold effect. When major pieces of centrist reform are just one step away from becoming constitutional law, they will galvanize enormous public movements behind them that could swamp the current MAGA majorities even in today’s deep red statehouses that Super rightly fears. The prospect of amendment ratification could easily double popular participation in electing state legislators. Super and his CCC allies surely recognize that such massive increases in turnout, especially among young voters, almost universally favor progressive causes. That is why voter suppression has become the highest priority of far-right statehouses. To give enough time for popular support to grow, Congress should allow a 20-year window for ratification in the enabling statute. And, as I suggested in The Democracy Amendments, if we cannot get rule (c) into the law, a good fallback option is to allow passage by two routes: either a simple majority of delegations or by 60% of individual delegates. 

Finally, as Larry Lessig and Sandy Levinson have repeatedly argued, it is clear that even with the threshold effect of proposal by a convention, no extreme MAGA amendment will get ratified by the required three-quarters of states. Even if they get Pennsylvania and Ohio, they would still need to get all but one state among Nevada, New Mexico, Delaware, Illinois, Virginia, and Washington. Because that is not going to happen, an ALEC-railroaded convention would be totally self-defeating: only compromise and no-brainer amendments will get ratified. 

Yet in his March 2024 testimony to the Connecticut House urging it to rescind its call for a convention, Super turned this key point entirely around and claimed that ALEC must therefore be planning to disregard the current Article V ratification requirement and demand that a simple majority in a national popular vote ratify its pet-convention’s proposals. This requires us to imagine that a convention would take revolutionary action, and that neither Congress nor the Supreme Court would block so outlandish a move. Rather, a convention is more likely to propose an amendment to Article V itself that might allow direct ratification by some national percentage of voters. But this would have to be ratified in today’s process, like other amendments proposed by a convention. 

III. Turning from paranoia to creative vision and smart strategy, Super and I at least agree that convention delegates, once called, would be federal officeholders whose discussions and agreements cannot be narrowly pre-scripted by state calls for a convention. Nor can Congress refuse to forward for ratification any proposals voted out of convention that arguably go beyond the topics listed in state calls (for this, as Vile notes, would “subvert the Founder’s intention” to provide a way of bypassing congressional opposition to widely supported amendments [p.122]). But recognizing that delegates need room to deliberate should be cause for hope: it means that a convention could craft new breakthrough bargains. Would it really be so terrible if the nation ratified an amendment that both limited budget deficits – which do threaten to saddle our children with crippling debt – and eliminated the Electoral College in the same article? 

More broadly, progressives should look at where they could productively compromise in exchange for great constitutional gains. For example, ask yourself if you would allow states to give public funding to religious schools, if in return you could overturn Citizens United and establish strict election spending limits? Or allow states to regulate transgender athletes in return for strong federal voting rights? Or let two-thirds of statehouses overturn a federal law in return for outlawing the filibuster? Or set a (fairly long) term limit on federal representatives and senators – even if this is likely to be counterproductive – in exchange for setting an 18-year term limit on Supreme Court justices? Would you ratify an amendment that legalizes prayer in schools and mandates ranked choice voting in all federal elections? Or that requires some minimum of political balance in college courses while also mandating a robust two-semester civics requirement in high school? I sure would. 

This is the first key strategic point: smart progressives can use the rabid appetites of MAGA reactionaries for culture-war victories and “states rights” symbolism as effective bargaining chips in a convention that will ultimately wrest control of the national government from today’s minority red-state domination. The biggest prize would be an amendment that ends the Senate’s power to kill House-passed bills, as opposed to merely delaying them. This strategy is feasible only if the convention retains some freedom to deliberate and bargain, rather than being rigidly hamstrung by instructions from the states or Congress. 

This brings us to the second key strategic point: fortune in this process will massively favor whoever writes the federal law specifying how the calls are counted, how the delegates are apportioned and chosen, and how the convention passes proposals. Otherwise put, there is a huge first-mover advantage here. And today’s progressive convention-phobes are doing everthing possible to ensure that this advantage goes to the Koch brothers and MAGA Republicans instead. Their just-say-no strategy virtually ensures that, when crises finally pushes more states to call for a convention, the only blueprint familiar to members of Congress and state legislators will be the ALEC-written convention plan, which would enable statehouses to dominate all three phases – calls, convention action, and ratification. Super’s fears are most likely to be realized precisely because, by forfeiting the field, progressives enable a MAGA majority in Congress to write the federal convention enabling law. This is like shooting oneself in both feet simultaneously. 

What, then, should progressives do whenever – by some miracle – they next control both chambers of Congress and the White House? They should pass the convention statute sketched above by exempting it from the filibuster, and insulate it from federal court oversight. The law should also say that all proposals passed by the convention will go automatically to the states, which must hold special elections – via a process also detailed in the statute – for state ratifying conventions conducted by state delegates subject to the same restrictions as federal delates. This would further erode the power of those MAGA state capitols. The law can provide that any proposed amendments which state conventions fail to ratify within two years after the convention are then open for state legislatures to ratify (by simple majority votes, in extraordinary joint sessions, without needing the governor’s signature) for the subsequent 18 years. 

The aim throughout is to make it at least somewhat more feasible to ratify amendments under our draconian 75% of states current requirement. This starts with doing what is needed to ensure that a national convention happens. The biggest procedural problem for this smart strategy is the pressure coming not only from ALEC’s CoS movement but also from many moderates and progressives to limit a convention to discussion and proposals on topics listed in the state calls. While I cannot evaluate here the many well-known legal arguments concerning whether a convention may be limited, I agree with Vile that overly restricting a convention’s agenda would defeat much of its likely benefits by blocking full deliberation and dealmaking needed to produce ratifiable proposals (see p.116, pp.122-23, and ch.10). Worse, the premise that convention delegates can only vote on proposals pre-scripted in state calls provides Congress with an endless excuse for never calling a new convention on the pretext that 34 states have not issued exactly the same call (see Vile p.132 quoting Robert Berry). 

So a smart Democratic majority in Congress should cobble together whatever extant state calls it can and rule that the threshold of 34 has been reached, ignoring any attempted limitations that statehouses have built into those calls. If red states attempt to rescind their calls, that is the point at which to bargain over details in the enabling law – having started, perhaps, from a provision giving states a number of delegates equal to half of their electors rather than a third, and three for Puerto Rico. 

What if Congress claims to have 34 valid calls and passes a joint resolution to call a convention, but some deep-red statehouses decide to boycott and refuse to hold elections for delegates? While the enabling law could claim the authority to commandeer state officials for purposes of organizing a convention and electing delegates, there would also be great strategic advantage if just a handful of the most MAGA states got away with not participating in the convention. The original convention might have failed entirely with Rhode Island present; if only Delaware had also boycotted, the “grand compromise” of 1787 might have also gone better for large states. The enabling statute for a new convention should therefore say that 51% of states (26) constitutes a quorum. Democrats who wrote the law would then need only a handful of swing states to join them in seating delegates and getting the convention started. Even if 13-16 red states boycotted, given the threshold effect noted earlier, amendments they had no hand in drafting might still get ratified – much as Rhode Island was eventually forced to knuckle under in 1790. 

However, unfortunately Vile is also correct that fears of an “unlimited” or “runaway” convention – which is often conflated with a revolutionary one of the sort that Super describes – remains the biggest obstacles to getting enough state calls (p.110, p.120), even though calls for limited conventions only appeared in the 20th century (p.77). To reassure constituents panicked by doomsayers who predict that a convention will tear up the entire constitution, the enabling law can require a convention to deliberate substantially and vote on every issue mentioned in all extant and valid state calls, while not limiting the convention to discuss only these topics narrowly construed. It can also say that amendments altering the Bill of Rights are not germane. This could reassure statehouses that a convention will be “safe” and compatible with stable rule of law. At the same time, progressives can start grassroots campaigns in every state that allows ballot initiatives in order to get questions onto ballots asking voters directly whether their state should call for a convention to consider issues x, y, z, etc. Together, these salutary measures can help us get to 34 calls (assuming this is necessary). 

Finally, the law can also require the convention to consider those no-brainer amendments that I mentioned earlier, starting with the ERA (note that there is no language in Article V prohibiting Congress from adding its own agenda items to those suggested by state governments). This would help to ensure that the convention produces at least a few amendments that are almost certain to be ratified, given enough time for public pressure to build. That is crucial for restoring public hope and educating the public to see that the convention process can work. Such an outcome makes it much more likely that another convention could be called within 10-20 years later to forge bigger breakthroughs that break the two-party stranglehold, reduce political polarization, and restore the federal government to working order. 

All this is within our grasp if only enough progressives will put aside their unwarranted terrors and open their eyes to the prospects that a national convention – when well-designed – makes possible. But for this to work, we have to engage and fight for our preferred version of a convention, before events overtake us unprepared. It is time to put fears aside and get moving.

John Davenport is Professor of Philosophy and Director of Peace and Justice Studies at Fordham University. You can reach him by e-mail at


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