A Constitutional Convention? Some Democrats Fear It’s Coming.

As Republicans prepare to take control of both Congress and the White House, one of the scenarios that is keeping Democrats up at night involves a possibility that many Americans might think is a thing of the past: a constitutional convention.https://wordpress.com/

The only time in U.S. history that state representatives gathered to amend the Constitution was in 1787 in Philadelphia, when the original document was drafted. However, a simple provision in the Constitution permits Congress to call a convention to amend the document if two-thirds of state legislatures request it. While this provision has never been used, some experts believe that long-forgotten calls from states could be enough to trigger a new constitutional convention.

As a result, some Democratic leaders are more concerned than ever about this possibility. For example, California State Senator Scott Wiener recently proposed legislation that would rescind California’s seven active requests for a constitutional convention, the first such action since Donald Trump’s second presidential election. Wiener, along with other liberal Democrats, fears the possibility of a “runaway convention,” where Republicans might call for a convention under the guise of passing an amendment such as a balanced federal budget, but then use it as an opportunity to push through numerous other amendments, including those that could restrict abortion rights or civil liberties.

“I do not want California to inadvertently trigger a constitutional convention that ends up shredding the Constitution,” Wiener said in a recent interview.

Rep. Jodey Arrington, a Republican from Texas and chairman of the House Budget Committee, is one of the leading proponents of a constitutional convention. He has introduced legislation to require the National Archives to track state applications for a convention and has argued that such a gathering should have occurred in 1979, when he believes enough states had made the request.

Since 2016, following Trump’s first election, nine states with Democratic-controlled legislatures have rescinded their calls for a constitutional convention, often with bipartisan support, out of concern that a Republican-led Congress and state legislatures could push for a conservative rewrite of the Constitution.

The Founding Fathers left virtually no instructions on how a constitutional convention would function. Article V of the Constitution allows amendments if two-thirds of state legislatures (currently 34 out of 50) agree to convene, but it offers no guidance on the structure of the convention or how it would proceed. It remains unclear whether all states would have equal voting power, whether the convention could consider issues not initially on the agenda, or whether lobbyists and special interest groups could participate. Constitutional scholars have expressed uncertainty over how even basic procedural questions would be resolved.

According to the Article V Library, a repository for records of state applications to amend the Constitution, more than 34 states have standing requests for constitutional changes, some dating back over 150 years. These requests reflect various concerns of different eras, including early 20th-century calls for anti-polygamy amendments and post-World War II proposals for a world federal government. In more recent decades, some states have pushed for amendments such as a balanced federal budget or a line-item veto for the president.

At a recent congressional hearing on budget issues, Rep. Arrington called the failure to convene a convention in 1979 a “constitutional travesty” and maintained that one should still be called. At the hearing, David Walker, a former U.S. comptroller general, mentioned that several states were considering suing Congress for failing to call a convention at that time.

However, it is unclear whether Republicans would seriously pursue such a convention. Some Democrats have dismissed the concern, citing the legal ambiguities surrounding the process and the difficulty of achieving broad consensus in a polarized political climate. After all, any proposed amendment would still need to be ratified by three-fourths of state legislatures, a high bar for approval.

That said, Trump has indicated his desire to alter the 14th Amendment to prevent automatic citizenship for children born in the U.S., and conservative figures like former Senator Rick Santorum have urged state legislatures to push for a convention. “Washington is never going to fix itself,” Santorum said during a news conference on the topic.

Erwin Chemerinsky, Dean of the University of California, Berkeley, School of Law, has expressed that Democratic fears are “very legitimate.” He acknowledged that while the rarity of constitutional conventions makes it seem unlikely, the current political climate is so unpredictable that it’s hard to make any definitive predictions. “It’s all uncharted territory,” he remarked.

In California, Senator Wiener is taking action to ensure that a convention never happens. The state’s oldest request for a convention dates back to 1911, when California called for one to allow direct popular elections of senators, a reform that was ultimately achieved through the 17th Amendment, passed in 1913. In total, California has seven active requests, many of which are related to issues like campaign finance reform or motor vehicle taxes. The state is also among the six that supported the idea of a world federal government.

Wiener’s bill would cancel these seven requests, including a proposal that Governor Gavin Newsom made last year for a gun-control amendment. Newsom’s proposal would prohibit the civilian purchase of military-style firearms and establish universal background checks for gun sales. If Wiener’s legislation is passed, California would follow the lead of other Democratic-controlled states that have rescinded their requests for a constitutional convention since 2016, such as New Jersey, Oregon, Illinois, and New York.

With Republicans set to hold significant power in Washington next year, more Democratic states may feel compelled to follow suit and withdraw their calls for a convention. Vermont, Massachusetts, and Connecticut have previously introduced resolutions to rescind their applications, though those efforts have stalled.

According to David Super, a constitutional expert at Georgetown University, the highest number of requests for a specific amendment is 28, most of which relate to the balanced budget issue. However, if Article V is interpreted to allow any state request to count toward convening a convention, then the threshold of 34 states has already been reached. “If Congress declares, using whatever counting theory convention proponents support, that the threshold has been met, then we’ll have a convention,” Super said.