The State Constitutional Convention Clearinghouse

 

U.S. states where the people can use a state constitutional convention to bypass the legislature's gatekeeping power over constitutional amendment

States With The Implicit Constitutional Convention Initiative?

 

State Color Code

Orange — Constitution includes the popular initiative.*

 Purple — Constitution explicitly states the popular constitutional initiative can be used to call a convention.

*No distinction is made here between states with either or both the popular statutory or popular constitutional initiative.
However, if you hover over a state, the pop-up text below the map will tell you what types of initiative it has.

 Explanation

An implicit constitutional convention popular initiative is one that isn’t explicitly specified in a constitution.  Of the more than twenty states with some form of the popular initiative, only four–Florida, Montana, North Dakota, and South Dakota–have an explicit provision stating that the popular initiative can be used to call a constitutional convention, thus bypassing the legislature. In the others, it is arguably an implied power of the popular initiative.  Only Missouri and Michigan have used this implied power to convene a convention.  Both did so by specifying a convention referendum date and system of election for convention delegates.  For a brief explanation, see Snider, J.H., “Rauner’s best route may be constitutional convention,” State Journal-Register, December 27, 2015.

One-Step vs. Two-Step Implied Power

It has been argued that this implied power can be exercised via one of two basic processes:  a one-step or two-step constitutional convention popular initiative.  Through a one-step process, the initiative is used to call a constitutional convention directly.

Through a two-step process, the initiative is used to call a constitutional convention indirectly.  The two-step process consists of 1) passing an initiative to change the constitutional initiative article to include a provision for directly calling a constitutional convention, and then 2) directly calling a constitutional convention through the initiative. Both initiatives for steps 1) and 2) could presumably be placed on the same ballot.  

For most states, the authorities have had little to say about whether a one- or two-step process is legal and whether a constitutional convention can legally or meaningfully be called with either process.  Nevertheless, the general consensus is that in at least some states the right to call a constitutional convention via the initiative is an implied power.

Practical Considerations

Even when calling a constitutional convention via the initiative is an implied power, that power may be restricted in such a way that it is impractical. For example, if the initiative cannot be used to pay for convention expenses, it may not be practical to call one.

Most people who want to use the initiative to bypass the legislature have a specific public policy goal and see merely additional risk and expense in calling a state constitutional convention.  The types of activities for which a constitutional convention is best suited–general democratic reform focused on public goods–are those where the public tends to be most indifferent because the impact on them is most indirect and hard to understand.

Another reason for preferring conventional uses of the popular initiative over the calling of a constitutional convention is that wherever either a one- or two-step procedure were used, it would undoubtedly be subject to litigation by parties opposed to calling a convention.  In contrast, the law of using the conventional popular initiative is usually well-settled for most narrowly targeted purposes.

Legal Arguments

Marked on the map are: a) states with an explicit provision to call a state constitutional convention via the initiative, and b) states with the initiative but no explicit provision to call a state constitutional convention via the initiative.   This simple categorization may evolve on this website as new legal considerations come to light.  

The legal question in b) states is whether calling a constitutional convention via the initiative is an implied power of the sovereign people.   Although it might at first glance appear that only the constitutional initiative could be used to call a constitutional convention, this is not necessarily the case.   Legal authorities have argued that just as many legislatures have claimed an inalienable right to call a constitutional convention even if such a procedure isn’t specified in their state constitution, the sovereign people should have a similar right when using the statutory initiative to call a constitutional convention.  

John Hempelmann  appears to be the leading legal theorist on the one-step constitutional convention popular initiative.  He develops his argument in the context of Washington State but includes references to other states.  See Hempelmann, John W. “Convening a Constitutional Convention in Washington through the Use of the Popular Initiative.” Washington Law Review 45 (1970): 535.

Steven Miller appears to be the leading legal theorist on the two-step constitutional convention popular initiative.  He develops his argument in the context of California.  See Miller, Steven. “Getting to a Citizens’ Constitutional Convention: Legal Questions (without Answers) Concerning the People’s Ability to Reform California’s Government through a Constitutional Convention.” Loyola Law Review 44 (2010): 545.

For an argument that the popular sovereign has an inherent right to the constitutional initiative–and by extension, the right to call a constitutional convention–even without an explicit constitutional initiative provision in a constitution, such as is missing in Article V of the U.S. Constitution, see Amar, Akhil. “The Consent of the Governed: Constitutional Amendment outside Article V.”  Columbia Law Review 94 (March 1994):457-508.

The introduction of the initiative and referendum in South Dakota, Oregon, Montana, Oklahoma, Missouri, and Maine makes it possible for the people of these states to initiate and adopt a measure providing that a convention be held, and thus removes this question to a large extent from legislative control.

Walter Dodd, "The Revision and Amendment of State Constitutions," 1910, page 54.

Since the introduction of the initiative and referendum in the West and Middle West… the people can [in Idaho, Maine, Montana, South Dakota, Utah, and Washington] initiate and adopt a measure providing for the holding of a convention….  If the [convention enabling] act originates by an initiative petition, it is clear that the people pass the act, although there may be some dispute as to whether they proceed under the authority of the constitution, or under a supra-constitutional authority, with the mere assistance of the constitution.

Roger Hoar, "Constitutional Conventions, Their Nature, Powers, and Limitations," 1917, pages 58, 77.

[T]he initiative may… be used to advantage in overcoming legislative recalcitrance. Albert Sturm, "Methods of State Constitutional Reform," 1954, page 120.

According to popular sovereignty theory, the people retain the inherent right to alter their government however and whenever they desire, and provisions for change in existing constitutions neither create nor restrict this inherent right.

John Hempelmann, "Convening a Constitutional Convention in Washington through the Use of the Popular Initiative," 1970, page 540.

If the constitution gives all political power to the people, and if the constitution grants the people the right to alter or reform the government when the public good may require it, then surely the people ought to be able to decide whether to grant themselves the power to place on the ballot the question of whether there should be a convention without a two-thirds vote of the legislature.

Miller, Steven. "Getting to a Citizens' Constitutional Convention: Legal Questions (without Answers) Concerning the People's Ability to Reform California's Government through a Constitutional Convention," 2010, page 564.

State by State Debates

California

  • Miller, Steven. “Getting to a Citizens’ Constitutional Convention: Legal Questions (without Answers) Concerning the People’s Ability to Reform California’s Government through a Constitutional Convention,” 2010, page 564.

Massachusetts

  • Goldings, Morris M. “Use of the Popular Initiative Petition for a Constitutional Convention Act, The.” Mass. LQ 47 (1962): 367.  Argues that it can be used.
  • Grinell. “Does the Initiative and Referendum Amendment Authorize an Initiative Petition for Another Constitutional Convention.?.” MASS. LQ 9 (1924): 35.
  • Cohen v. Attorney General, 259 N.E.2d 539, 357 Mass. 564 (1970).

Mississippi

  • Southwick, Leslie H., and C. Victor Welsh III. “Methods of Constitutional Revision: Which Way Mississippi.” Miss. LJ 56 (1986): 17. (Only mentioned on page 36.)

Washington

  • Hempelmann, John W. “Convening a Constitutional Convention in Washington Through The Use of The Popular Initiative.” Wash. L. Rev. 45 (1970): 535.