Who’s Afraid of a Constitutional Convention?

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Nikolas Bowie

Two years ago, a ballot question asked Rhode Island voters whether there should be a convention to revise the state’s constitution. The Rhode Islanders answered no. Overwhelmingly. With 62 percent of voters opposing the proposal, an observer across the border might assume the Ocean State’s residents love the way their government is structured. It looks a lot like the federal system, with a bicameral legislature chosen by first-past-the-post elections, a separately elected chief executive, and an appointed judiciary that sits for life.

Rhode Island isn’t unique in its support of the status quo. It’s one of fourteen states whose constitution requires voters to consider, every few decades or so, whether their state constitution needs a reset. From Alaska to New York, voters in these states consistently reject the request. Year after year, when Americans are given the most frictionless option possible for reimagining how government in the United States might be restructured, they choose to keep things as they are.

The irony, of course, is that the Federal Constitution looks frailer than ever. The past two decades have crammed newsfeeds with the downsides of bicameralism, first-preference-plurality elections, presidentialism, and judicial supremacy. As Stephen Skowronek observes in The Adaptability Paradox, the institutional arrangements that sat at the vanguard of 18th-century political science have increasingly failed to serve as an agreed-upon anchor for our current, more inclusive society. He notes that the Federal Constitution has proven remarkably adaptable at responding to crises, including those sparked by partisanship and demands for white male suffrage in the 1820s; abolition and demands for black male suffrage in the 1860s; the administrative state and demands for women suffrage in the 1910s; and the attempted fulfillment of universal inclusion in the 1960s. But he writes that this adaptability comes with a paradox: Each time the Constitution is renovated to accommodate a more inclusive polity, it loses its ability to “make a burgeoning democracy work aligned with a shared understanding of its formal arrangements and their purposes.” The more the Constitution adapts, the less coherent its structure becomes.

Skowronek rightly notes that when it comes to what should be done about this paradox, “we have ideas aplenty.” Legal scholars and political scientists regularly diagnose our constitutional maladies and prescribe reforms that will push the United States toward European-style social democracies, with their parliaments and proportional representation. Yet he also correctly observes that the problem facing the United States Constitution isn’t simply removing the filibuster, Electoral College, or other “blockages and constraints” that currently cabin democracy. He writes that it is naïve and misguided to prescribe reforms without “attending to reordering as directly as past generations of reformers did,” with explicit focus on how to build both a democratic structure and a democratic culture to support it. What we’re missing now is not ideas, but some sort of vehicle for making “a politically convincing case” for any of them.

In my view, Rhode Island’s vote in 2024 offers one explanation for why this vehicle appears so hard to locate today—and where we should look to find a way out of our current constitutional predicament. The thing that is most obviously missing from constitutional discourse today that was present during constitutional adaptations in the past is state constitutional conventions.

In each of Skowronek’s examples of when the Federal Constitution “adapted” to accommodate a more democratic society, the national government was not at the forefront of structural change but instead functioned as a lagging indicator. In the 1820s, when the national electorate expanded to accommodate virtually all white men, it did so because states were expanding their own electorates by removing voter qualifications and restructuring state governments to accept mass participation. In the 1860s, when Congress sought examples of what a true “republican” government should look like, it modeled its antidiscrimination and voting-rights legislation on what some Northern states were already doing. In the 1910s, the Nineteenth Amendment followed the full or partial enfranchisement of women in dozens of states. Even the “rights revolution” of the 1960s didn’t come out of nowhere but followed a long history of state constitutional conventions and amendments that enshrined the right to vote alongside environmental rights, labor rights, and sex equality.

These sorts of changes in state constitutions did not cause subsequent changes in the Federal Constitution. But they were each the product of organized movements that grew and built power from smaller victories. State constitutions tend to be far easier to amend, both culturally and structurally, than the Federal Constitution. They reflect Thomas Jefferson’s argument that “the earth belongs always to the living generation,” and therefore all constitutions should allow future generations to decide for themselves how to structure their own society. Many state constitutions originally embodied his idea by mandating constitutional conventions every twenty years. This idea is why Rhode Island and thirteen other states continue to hold referenda on the question.

Employing conventions and other methods of amending state constitutions, groups of workers and disenfranchised communities have shown the rest of the country how transformations that might seem radical can be folded within the American tradition. Conventions in particular focus public attention on a specific, concrete question: what should our government actually look like? That question gives movements a clear target to mobilize around, forces communities to engage seriously with the substance of democratic governance, and generates organizing capacity that has historically proven transferable to the federal level.

But in recent decades, lawyers, especially on the left, have increasingly viewed conventions with skepticism. Since the 1970s, the organizations that once sought to change constitutions through mass politics have put their faith in courts to secure political victories.

Consider what happened in Rhode Island in 2024. No one campaigned for the ballot question on whether to hold a constitutional convention. But a coalition led by the ACLU and state labor unions still opposed it. They spent tens of thousands of dollars warning that a convention “could be disastrous for Rhode Islanders’ rights and liberties.” They noted that a constitutional convention “is controlled by the majority,” and therefore was “almost guaranteed to not consider the rights of minorities.” In a state where Democrats outnumber Republicans 3 to 1, the coalition warned that a convention would leave abortion access and LGBTQ+ rights “at risk.”

Yet as Skowronek’s book amply demonstrates, these sorts of political victories are always “at risk,” even if one believes they are currently protected by courts or constitutional text. To literally campaign against mass politics at the state level—to fear every majority, including one politically aligned with you—is to reject the very premise of democracy and announce that the world around us is the best we can hope for. If a state like Rhode Island refuses even to consider how it might improve upon the federal structure amid a clear breakdown among federal institutions, it is difficult to imagine what would push Congress to do so on its own initiative.

What Rhode Island’s experience reveals is that the greatest obstacle to constitutional renewal is the refusal of those who believe in democratic change to trust democratic processes. The movements that remade American government in the past did not begin by asking courts to protect them from majorities. They organized, persuaded, won, and demonstrated that constitutional adaptation was both possible and necessary. Until leaders emerge who are willing to make that case again—at the state level, before real electorates, in contests with genuine stakes—we will go on producing “ideas aplenty” and democratic renewal not at all.

Nikolas Bowie is the Louis D. Brandeis Professor of Law at Harvard Law School and can be reached at nbowie@law.harvard.edu.