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

Introduction to Features Table (click on + to the right)

What the fourteen states in the accompanying table have in common is a constitutionally mandated periodic referendum to convene a state constitutional convention.  Despite that shared trait, their procedural details vary substantially.  Indeed, they vary so much that the variation calls into question including all of them under the same conceptual category.

Explaining the Features Variation in Terms of Sloppiness

In many cases, the variation may be better explained as a function of sloppy rather than careful work.  The reasons for the sloppiness are clear.  Periodic constitutional convention provisions have generally been of very low priority.  The public does not vote to convene a constitutional convention to improve the ability of future publics to convene constitutional conventions.  They vote for constitutional conventions to pass reforms that will have an immediate impact on their lives.

Similarly, the candidates who run for constitutional convention delegate are geared to the more immediate needs of their constituents.  This is reflected in the fact that the periodic constitutional convention provisions are usually only debated toward the end of a convention and then only briefly.  By the time they are discussed, both the convention and the public are generally exhausted by the convention process and everyone wants the convention to be over as soon as possible.  When corners are cut, one of the big losers tends to be the periodic constitutional convention clause.  Consequently, periodic constitutional convention clauses are among the most carelessly drafted sections of state constitutions.

This was vividly illustrated with the constitutional convention clause in Article V of the U.S. Constitution.  From May through September 1787, the constitutional convention witnessed many fierce and exhausting battles.  But it would wait until the last week of the convention to focus on how a future convention could be used to amend the Constitution.  By then, many of the delegates had already left the convention and the remainder were applying great pressure for a quick adjournment.  The result is that Article V is not only the shortest of the six substantive articles of the Constitution (the seventh, Article VII, is what state constitutions often label the “schedule,” which specifies how the proposed Constitution will be ratified).  It is also notoriously ambiguous in specifying how a future constitutional convention would actually work.

State constitutions have arguably done a much more thoughtful job in drafting provisions for periodic constitutional convention referendums.  This is especially true of the provisions drafted during the last one hundred years.  But the issue of how to design a future constitutional convention has remained at the bottom of the priority list for most state constitutional conventions.  When one realizes that these provisions could not have any substantive impact for decades or even many generations into the future, it is a wonder that constitutional conventions devote to them any time and brain power at all.

If constitutional convention clauses are so poorly drafted by conventions, why don’t legislatures propose constitutional amendments to fix them?  Unfortunately, they have minimal incentive to do so because the primary function of the periodic constitutional convention is to provide a check on the legislature.  Indeed, legislatures have an incentive to harm them.  (Fortunately, they have limited ability to do so via constitutional means because the public would be unlikely to ratify a constitutional amendment harmful to its interests.)  Thus, whereas other poorly drafted sections of a constitution tend to receive legislative fixes over time, the periodic constitutional convention referendum section is an exception.

Explaining the Features Variation in Terms of Purpose

Of course, the variation in features also reflects purpose.   One important explanatory variable is experience.  Clauses drafted during the last hundred years tend to be more detailed than those drafted earlier, presumably because of learning effects.  One learning effect has been new ways to restrict legislative discretion over the periodic constitutional convention process.  Since the legislature has lawmaking powers not otherwise restricted in a constitution, restricting legislative powers tends to result in clauses of greater length.

Another explanatory variable has to do with variation among the states.  For example, a delegate election process suitable for a state with a small population may not be suitable for one with a large population.

Another explanatory variable has to do with legislative control of the drafting process.   The more legislative control, the more legislatures are likely to design future constitutional conventions to maintain that control.

The most important variation bears on the democratic function of the periodic constitutional convention.  Features that don’t support the democratic function of a periodic constitutional convention should be frowned upon.  But that requires a normative framework.  Once it is in place, it becomes possible to rank the variation.  See U.S. Rankings (forthcoming) for the specification and application of such a normative framework.

The 7 Stages of Periodic Constitutional Conventions

Perhaps the most unusual feature of the features list below is the division of the periodic constitutional convention process into seven stages.  Although it is well understood that periodic constitutional conventions occur in different stages, this understanding has been imperfectly reflected in the structure of the relevant constitutional clauses.  The clauses tend to start with the stage 1 convening referendum process but then degenerate into a mishmash of procedures, often not specifying who should make important procedural decisions at each stage.  Since the default for ambiguity is legislative control, this tends to undermine the function of the periodic constitutional convention.

Others may decide that I have too many or two few stages depending on what they choose to emphasize.  For example, I have stages for specifying whether a majority has been obtained after the convening and ratifying referendums.  This has been of particular concern in the states (notably Maryland and Hawaii) where the majority denominator is vaguely specified and thus allocates great discretionary power to the entity deciding whether the majority requirement has been met.  Where the majority denominator is specified in less ambiguous terms, these stages exert less influence on the outcome.

Methodological Caveats

The features table is a work in progress.  When readers find errors or believe I have inaccurately conceptualized something, I hope they will share that knowledge with me.

The biggest omission is the focus on constitutional law and within that the plain meaning of the text in the future amendments articles.  Many other forms of law, notably statutory and case law, have an important bearing on future constitutional conventions.  Implementation considerations are also important.  Just because a law exists doesn’t mean there is a mechanism to enforce it.  Given that courts often consider the interpretation of constitutional convention provisions as non-justiciable “political questions,” enforcement issues may be unusually important.

Even within the context of the plain meaning of the text in the future amendments articles, I exercised some discretion in assigning features to the various states.  For example, sometimes a state didn’t clearly fit into a certain category or a particular power was clearly implied but not explicitly stated.  In making the judgments that I did, I could easily have erred in places.   An impartial lawyer skilled in the art of constitutional interpretation could surely have done a better job than I have done (I am a political scientist by training, not a lawyer).

Two states (Alaska and Hawaii) had provisions that relied in part on precedent rather than explicit instructions to determine their meaning.  Since this features table is primarily based on the plain meaning of the text rather than external documents, that presented a significant problem, which I addressed by simply using in the features table the ambiguous “P” for based on precedent.

Again, I hope readers will help me improve the accuracy and thoroughness of this features table over the coming years.

–J.H. Snider
August 19, 2014
Last revision: August 24, 2014

For those who prefer to first review the features table,
the introduction may be read below it.

A pdf version of the features table may be downloaded here.

Please be patient as the table below may take a moment to load.

 

Survey of the 14 States with Periodic Constitutional Convention Referendums

 

Introduction to the 14 State Survey

What the fourteen states in the accompanying table have in common is a constitutionally mandated periodic referendum to convene a state constitutional convention.  Despite that shared trait, their procedural details vary substantially.  Indeed, they vary so much that the variation calls into question including all of them under the same conceptual category.

Explaining the Features Variation in Terms of Sloppiness

In many cases, the variation may be better explained as a function of sloppy rather than careful work.  The reasons for the sloppiness are clear.  Periodic constitutional convention provisions have generally been of very low priority.  The public does not vote to convene a constitutional convention to improve the ability of future publics to convene constitutional conventions.  They vote for constitutional conventions to pass reforms that will have an immediate impact on their lives.

Similarly, the candidates who run for constitutional convention delegate are geared to the more immediate needs of their constituents.  This is reflected in the fact that the periodic constitutional convention provisions are usually only debated toward the end of a convention and then only briefly.  By the time they are discussed, both the convention and the public are generally exhausted by the convention process and everyone wants the convention to be over as soon as possible.  When corners are cut, one of the big losers tends to be the periodic constitutional convention clause.  Consequently, periodic constitutional convention clauses are among the most carelessly drafted sections of state constitutions.

This was vividly illustrated with the constitutional convention clause in Article V of the U.S. Constitution.  From May through September 1787, the constitutional convention witnessed many fierce and exhausting battles.  But it would wait until the last week of the convention to focus on how a future convention could be used to amend the Constitution.  By then, many of the delegates had already left the convention and the remainder were applying great pressure for a quick adjournment.  The result is that Article V is not only the shortest of the six substantive articles of the Constitution (the seventh, Article VII, is what state constitutions often label the “schedule,” which specifies how the proposed Constitution will be ratified).  It is also notoriously ambiguous in specifying how a future constitutional convention would actually work.

State constitutions have arguably done a much more thoughtful job in drafting provisions for periodic constitutional convention referendums.  This is especially true of the provisions drafted during the last one hundred years.  But the issue of how to design a future constitutional convention has remained at the bottom of the priority list for most state constitutional conventions.  When one realizes that these provisions could not have any substantive impact for decades or even many generations into the future, it is a wonder that constitutional conventions devote to them any time and brain power at all.

If constitutional convention clauses are so poorly drafted by conventions, why don’t legislatures propose constitutional amendments to fix them?  Unfortunately, they have minimal incentive to do so because the primary function of the periodic constitutional convention is to provide a check on the legislature.  Indeed, legislatures have an incentive to harm them.  (Fortunately, they have limited ability to do so via constitutional means because the public would be unlikely to ratify a constitutional amendment harmful to its interests.)  Thus, whereas other poorly drafted sections of a constitution tend to receive legislative fixes over time, the periodic constitutional convention referendum section is an exception.

Explaining the Features Variation in Terms of Purpose

Of course, the variation in features also reflects purpose.   One important explanatory variable is experience.  Clauses drafted during the last hundred years tend to be more detailed than those drafted earlier, presumably because of learning effects.  One learning effect has been new ways to restrict legislative discretion over the periodic constitutional convention process.  Since the legislature has lawmaking powers not otherwise restricted in a constitution, restricting legislative powers tends to result in clauses of greater length.

Another explanatory variable has to do with variation among the states.  For example, a delegate election process suitable for a state with a small population may not be suitable for one with a large population.

Another explanatory variable has to do with legislative control of the drafting process.   The more legislative control, the more legislatures are likely to design future constitutional conventions to maintain that control.

The most important variation bears on the democratic function of the periodic constitutional convention.  Features that don’t support the democratic function of a periodic constitutional convention should be frowned upon.  But that requires a normative framework.  Once it is in place, it becomes possible to rank the variation.  See U.S. Rankings (forthcoming) for the specification and application of such a normative framework.

The 7 Stages of Periodic Constitutional Conventions

Perhaps the most unusual feature of the features list below is the division of the periodic constitutional convention process into seven stages.  Although it is well understood that periodic constitutional conventions occur in different stages, this understanding has been imperfectly reflected in the structure of the relevant constitutional clauses.  The clauses tend to start with the stage 1 convening referendum process but then degenerate into a mishmash of procedures, often not specifying who should make important procedural decisions at each stage.  Since the default for ambiguity is legislative control, this tends to undermine the function of the periodic constitutional convention.

Others may decide that I have too many or two few stages depending on what they choose to emphasize.  For example, I have stages for specifying whether a majority has been obtained after the convening and ratifying referendums.  This has been of particular concern in the states (notably Maryland and Hawaii) where the majority denominator is vaguely specified and thus allocates great discretionary power to the entity deciding whether the majority requirement has been met.  Where the majority denominator is specified in less ambiguous terms, these stages exert less influence on the outcome.

Methodological Caveats

The features table is a work in progress.  When readers find errors or believe I have inaccurately conceptualized something, I hope they will share that knowledge with me.

The biggest omission is the focus on constitutional law and within that the plain meaning of the text in the future amendments articles.  Many other forms of law, notably statutory and case law, have an important bearing on future constitutional conventions.  Implementation considerations are also important.  Just because a law exists doesn’t mean there is a mechanism to enforce it.  Given that courts often consider the interpretation of constitutional convention provisions as non-justiciable “political questions,” enforcement issues may be unusually important.

Even within the context of the plain meaning of the text in the future amendments articles, I exercised some discretion in assigning features to the various states.  For example, sometimes a state didn’t clearly fit into a certain category or a particular power was clearly implied but not explicitly stated.  In making the judgments that I did, I could easily have erred in places.   An impartial lawyer skilled in the art of constitutional interpretation could surely have done a better job than I have done (I am a political scientist by training, not a lawyer).

Two states (Alaska and Hawaii) had provisions that relied in part on precedent rather than explicit instructions to determine their meaning.  Since this features table is primarily based on the plain meaning of the text rather than external documents, that presented a significant problem, which I addressed by simply using in the features table the ambiguous “P” for based on precedent.

Again, I hope readers will help me improve the accuracy and thoroughness of this features table over the coming years.

–J.H. Snider
August 19, 2014
Last revision: August 24, 2014