The Carpetbagger reports that Constitutional convention talk refuses to go away:
some of the less-sane members of the GOP base are openly considering a constitutional convention because of the Senate’s failure to pass an amendment banning gay marriage. Unfortunately, talk of such a ridiculous idea seems to be increasing, not decreasing.
A second Constitutional Convention is actually far more likely than it should be: Over the decades, arguably as many as 32 states have passed resolutions calling for a Constitutional Convention, just two shy of the 34 needed. I say “arguably” because some of these were a long time ago, and Dillon v. Gloss (1921) (!) tells us that changes in the Constitution should be the result of a “contemporaneous consensus.” Nevertheless, there is a contrary body of opinion, exemplified by the ratification of the 27th Amendment that these calls do not have a ‘use-by’ date — they remain in force at least until rescinded by the legislatures which issued them. (Some people even argue that since the Constitution doesn’t mention taking back a call for a convention, even a rescinded call for a Convention remains in effect!)
On the other hand, many of the petitions states have voted in the past are plausibly dismissed as technically deficient, as they purport to request that a convention be called for a particular purpose (e.g. to consider a given amendment), while the Constitution quite clearly contemplates only an open-ended procedure. It’s not at all clear what weight to give those resolutions.
Working on a worst-case hypothesis, as best I can tell the 32 states that have called for a new Constitutional Convention in some form or other are:
Alaska, Arizona, Arkansas, Delaware, Colorado, Georgia, Idaho, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska , New Hampshire, New Mexico , North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania , South Carolina, South Dakota, Tennessee, Texas, Utah , Wyoming
Many of these states passed resolutions that purported to limit the requests to a balanced budget amendment, and the large majority did so between 1975 and 1979 — almost a generation ago.
Alabama, Florida and Louisiana each subsequently rescinded their calls. As if in counterbalance, South Carolina and Tennessee passed their resolutions twice and Louisiana did it three times.
One house of the bicameral Nevada legislature also purported to “purge” its resolution, but as the call had been voted by both houses, it’s hard to see this as legally effective.
So the bottom line is…confusing. If the calls for a limited convention count as calls for an unlimited convention, and the rescissions don’t work, then we could be as little as two states away. If the three rescissions are legally effective — and I think they should be — we could be as little as five states away. On the other hand if only knowing and general calls for a convention work (which, on balance, I think should be the right answer) then we are very far away, although I don’t know what the exact number is; similarly, if the courts were to craft some sort of time limit for the validity of a call for a Convention, then we could be almost at square one, depending on what the line was.
Even if a Convention were to meet and to report out a new document, or changes to the old one, any revisions would have to be ratified by the states. I am sure that I don’t need to spell out how dramatic the potential changes could be — for ill, or even for good.
So, you heard it here first: If the call for a Second Constitutional convention happens, and if it survives its trip through the courts, then I’m going to be running to be a delegate. (Assuming we even get to elect our delegates, of course.)
