The writer is associate dean and a law professor at the University of Nebraska College of Law, where he teaches and researches in the area of constitutional law. This reflects his personal views. He is not speaking on behalf of the law college or the university.
A plan to call for a convention to amend the U.S. Constitution is before the Nebraska Legislature this session. The so-called “Faithful Delegate” bill, Legislative Bill 1058, presumes that the Legislature will be able to control Nebraska delegates to a constitutional convention. This presumption is flawed, as is the underlying movement to call for a convention. Indeed, regardless of one’s political views, there are good reasons to think a constitutional convention could do the nation far more harm than good.
Under Article V of the Constitution, there are two ways to propose a new constitutional amendment. First, Congress can propose amendments by a two-thirds vote in each house. Second, two-thirds of the states can request that Congress call a constitutional convention for proposing amendments. All 27 of the Constitution’s amendments have been proposed by the first method. (In both cases, three-quarters of the states must ratify the proposed amendment for it to take effect.)
State legislators here in Nebraska and elsewhere are now seeking to invoke the second method. In so doing, they are steering the country into uncharted constitutional waters. Because this is uncharted territory, there are no procedural rules for how such a convention should operate. And because there are no clear rules, ideologues of all political stripes would inevitably use the opportunity to try to hijack the process to further their own interests.
It is vital that Nebraskans understand that nobody knows how a convention would play out. State senators favoring a particular constitutional amendment may find that a convention proposes something entirely different. Indeed, while some conservatives seek a balanced budget amendment, other liberal groups are calling for an amendment to reform campaign finance laws. Once Congress calls a convention, there’s no way to know what will emerge.
LB 1058 anticipates these objections and purports to constrain Nebraska’s convention delegates. The bill, for instance, stipulates that certain Nebraska officials will automatically serve as delegates to an Article V convention. LB 1058 also attempts to remove and punish delegates whose votes defy the Legislature’s wishes.
Simply put, LB 1058 creates a misleading illusion that the state would be able to control its convention delegates. Similar bills have been set aside in Virginia and West Virginia this year for good reason: Nothing in the U.S. Constitution empowers state legislatures to limit the agenda of an Article V convention. Even assuming that 34 states passed identical resolutions, once a convention convenes, there is no guarantee that those attending would limit themselves to a preassigned topic. Moreover, Article V stipulates that Congress — not the states — calls the convention. Given the Constitution’s instructions, if any legislative body could assert control over the convention, it would likely be Congress. Indeed, Congress has historically assumed that it enjoyed wide discretion under Article V in deciding how to design a constitutional convention.
Even in the unlikely event that state legislatures somehow did retain legal control over their delegates, it is doubtful that they practically could exercise that control. An Article V convention might well choose to meet in secret, as the Constitutional Convention of 1787 did. Even if they did not, delegates may not cast any votes until they voted on the convention’s final product. At this point, it would be too late for the state Legislature to do anything about rogue delegates.
We live in deeply partisan times. There are no certainties about how a constitutional convention would play out, but the most likely outcome is that it would deepen our partisan divisions. Because there are no clear constitutional rules defining a convention’s procedures, a convention’s “losers” may deem illegitimate any resulting changes. Regardless of the ultimate outcome, the process itself would likely worsen our already vicious national politics. Far from mitigating these dangers, LB 1058 just papers over them.