The road not (yet) taken

The United States’ founders knew the country would need to amend the United States Constitution over time, and they bequeathed two paths for making changes. The first, outlined in Article V, allows Congress to propose an amendment with the support of two-thirds of both houses. To become part of the Constitution, a proposed amendment must then be ratified by three-fourths of the states. All 27 amendments to the Constitution, beginning with the Bill of Rights, were proposed this way.

The other, lesser-known route enables two-thirds of state legislatures to require Congress to call a convention for proposing amendments, each of which would likewise need to be ratified by three-fourths of the states. Americans have never tried it.

Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership, will convene more than 30 scholars, legislators, and advocates — supporters and skeptics alike, from across the political spectrum — to examine the potential for an unprecedented Article V convention, including the threat of a “runaway convention.” Lessig acknowledges the risks. But, he says, “I think the alternative of not doing anything is worse.”

Harvard Law Today recently spoke with Lessig about the upcoming conference, the risks an Article V convention could present, and the range of perspectives of event participants. VthePeople is a two-day event from October 2-3, held in Wasserstein Hall. Those who want to attend or view the sessions remotely can find information at VthePeople.org.

Harvard Law Today: What prompted you to put together this event, VthePeople, and why should people tune in?

Lawrence Lessig: In 2011, we had a similar event called the Conference on the Constitutional Convention — ConConCon — and it brought together both conservatives and liberals, and supporters and opponents of a convention. My real partner in organizing it was Mark Meckler, who at the time was running an organization that was supporting many different conservative groups, including the Tea Party, and he was not a supporter of a convention. But after the conference, he became a supporter of the convention, and he launched an organization called Convention of the States, which is one of the most important right-wing organizations that is supporting a convention. After 15 years, we decided it would be useful to reconvene this conversation to see if we’re any further along in thinking about the necessity of an Article V convention.

There are many people who believe the Constitution needs to be amended, and there are many fewer who believe that Congress is going to be an effective way of bringing that amendment about. And so, if you believe one and you believe two, then you should be open to considering more carefully the option of a convention.

HLT: Is there a certain amendment topic that made you pursue this question about a potential convention, like the balanced budget amendment reaching 28 state applications, or is this for you less about what amendments are considered and more about the actual convention – what it would look like, how to pull it off, etc.?

Lessig: I’m personally motivated for constitutional reform around what I call representational integrity — money in politics, gerrymandering, a right to vote, maybe term limits. These are all changes that would produce a Congress that was more properly representative of the people. I don’t think any of those reforms are going to happen outside of the convention. Those issues motivate me personally. But I’ve been thinking about a convention now for many years. The idea of a convention is something that has become more and more important to work out because the consequences of not finding a way to amend the Constitution are increasingly severe.

HLT: Why do you think this path has never been used successfully?

Lessig: Well, it depends on what you mean by successfully. I think, in some sense, it has been used successfully. We’ve never had a convention, but the threat of a convention has induced Congress to act in critical moments of our history.

At the founding, right after the Constitution was agreed to, it was the threat of another convention to address the Bill of Rights that led [James] Madison to really push the idea of Congress proposing a Bill of Rights. It was coming within two states of the number necessary to call a convention in the late 19th century that triggered the 17th Amendment. People were terrified that there would be a convention, and they proposed the amendment to avoid it. The balanced budget amendment triggered important reform on budgeting policies in the 1980s as a way to stanch the balanced budget movement, so that they would not bring about a convention. So, it’s been used to force the idea of constitutional reform into the political process.

We’ve never had a convention, though, due to a combination of factors. First, it wasn’t necessary when Congress picked up slack in the critical moments, that’s what happened in our history. Second, it’s raised a lot of anxiety among many about exactly how it would work and what its protections would be to avoid it becoming a destabilizing force. And I think those questions continue.

HLT: Because we haven’t had a federal convention, this is unchartered territory. What are the risks of going down this path?

Lessig: It is true that we’ve not had a federal convention, but we’ve had many state conventions. People always say they are worried there would be a “runaway” federal convention, but it’s useful to note that there’s never been a runaway state convention. It just doesn’t happen.

The most extreme thing they’re worried about is that it would propose amendments and then change the method by which amendments could be adopted or at least try to do that. Now, I don’t think it would have any power to do that, and I think the idea that it would is a mistaken interpretation of our constitutional past. But that’s the thing that makes people anxious.

They fear that if you unleash this process, there’s nothing to guarantee that it works. I guess I think that’s true — there’s nothing to guarantee that it succeeds, and maybe bad things would happen, though I don’t think they will. But I think the alternative of not doing anything is worse. That’s why I think, even if there is a risk, it’s the right risk to take.

HLT: And when you say runaway convention, are you referring to extreme cases like 1787 when we held the constitutional convention, delegates met to fix problems in the Articles of Confederation and ended up writing a whole new document, which is our Constitution? What do you picture when you talk about a runaway convention?

Lessig: The narrowest sense of a runaway is what happens if the convention considers topics that are beyond the scope of what it was convened to discuss. So, if you have a balanced budget convention, but it considers amendments to birthright citizenship, or it considers changes to money and politics regulations. That would be one type of runaway.

But the more dangerous or feared runaway is that the convention itself would attempt to change the rules for ratification of any proposed amendments. Again, I think this is a misunderstanding of our history because I don’t think that the Convention of 1787 changed any rules. What it did was propose a new constitution, and then it suggested Congress propose changed rules, and Congress did propose changed rules. But the question then is: Is there any chance that our Congress today could get away with changing the rules by which an amendment to the Constitution gets adopted? And the answer to that question has got to be absolutely no.

If Congress purported to say an amendment to the Constitution would be recognized if it’s passed by a majority of people in a referendum, I think it would take the Supreme Court about five minutes to overturn that decision. So, I don’t fear that runaway at all. But that’s the more extreme version people think about when they consider the risks of a runaway convention.

HLT: Jill Lepore writes in her book “We the People” about how the Constitution has been functionally unamendable since the 1970s, which she says contributes to modern political polarization and gridlock. Is starting a serious conversation about using this other path, the convention path, a way to address the problem she raises?

Lessig: Yes, her book is wonderful in reminding us about our rich convention past, not at the federal level, but at the state level. The conventions were the device where we had reflective, meaningful conversations about constitutional ideals, and I think that’s something we should find a way to revive here. It’s pretty clear, given the partisan character of Congress, that it’s not going to happen in Congress, so we’ve got to create fora for it to happen that are more likely to succeed. I don’t think there’s any guarantee that a convention succeeds, but it’s certainly more likely than Congress.

HLT: Why do you think now is the moment to bring together academics, experts, elected officials, etc. to consider these questions?

Lessig: If not now, when? I feel like the anxiety about constitutional reform is growing. And actually, the number of domains for constitutional reform is increasing. I think the Trump administration has revealed a bunch of issues, which some are suggesting require a constitutional change, like the question of the scope of presidential power or presidential immunity. So, I feel like to the extent it’s more and more clear Congress is not going to be a successful path, it forces us to take up the question of what could be a successful path for reform?

HLT: I notice there’s a wide range of political perspectives among the people who are participating in the event. Can you talk about the range of beliefs when it comes to this question of calling an Article V convention, and does that spectrum of perspectives fall along today’s political party lines?

Lessig: The conference is intended to include supporters and opponents of a convention, and intended to include liberals and conservatives. Those four boxes are populated by lots of people, and so I think it’s useful for people to recognize that their position is not a partisan position.

If you support [a convention], that doesn’t mean you’re a conservative necessarily; you could be liberal supporting it. If you oppose [a convention], it doesn’t mean you’re a conservative necessarily; there are liberals who oppose it. So, I think it’s useful to see that it’s a politically multiple question. There are a lot of different political positions supporting and opposing.

One thing that unites many of the people in the movement for an amendment is that they are more on the outside of politics than the inside. I think that Washington people, are terrified of the idea of a convention because it’s an opportunity for something they can’t control to have an effect on constitutional policy. That might concern them because they don’t have control or because they worry about what would come out of it, but I think the people who are pushing it strongest are people from the outside.

HLT: What’s your main goal coming out of the event? What do you hope happens?

Lessig: We’re not intending a revolution at this event. I think it would be enough if we begin to knit together understanding across partisan division about what the sensibility of the convention could be. It would be valuable to push the debate, and to get opponents of the convention to reevaluate their position.

For example, Common Cause, on the left, has been an opponent of the convention for 30 or 40 years, and a lot has changed in 40 years. In 1999, you might have said, “I oppose a convention because there’s so much at stake. We could lose Roe vs. Wade.” But today, you begin to say, “What is there on the left to lose anymore? What are you really worried the convention is going to take away that hasn’t already been taken away?” The constitutional regime we live with today, from a liberal perspective, is wildly worse than it was 20 years ago. If the stakes are different, if it’s more important to find a way for constitutional reform today than it was 20 years ago, maybe we should reconsider our resistance to what I think of as the only path to reform.

HLT: How did the class you taught, Amending the Constitution by Convention — about the history of the convention, the issues it raises, how it might be constituted and constrained — help spur the idea for the event?

Lessig: That was a great class, and the event is connected to it. The students were super, and they were very keen to support the idea of the conference. They basically are the ones managing the conference. Sometimes they listen to my suggestions, but they’re really the ones who’ve designed it and are executing on it. I think that out of that class, they saw the potential significance of the convention, and they were committed from the start to the idea that reform was desperately needed. There is eagerness among the students to see how we can continue to make progress in advancing understanding about a convention.

HLT: Is there anything else you would add about the range of beliefs of people who are going to be there and the things that they agree on in this space?

Lessig: The conference will be divided between those who support and those who oppose the convention. Those who support a convention support it for different reasons. There are people who support it for balanced budget reasons, people who support it for money in politics reasons. The substance is going to be different, but the people who support it, whether they’re on the right or left, are people who believe that there’s not much risk, or if there is any risk, it’s wildly outweighed by the benefits of having constitutional change. I think opponents to a convention are really anxious about the risk that the convention presents. It will be interesting to see if we can make progress in unpacking the character of that fear and maybe address some of it. But I think that seeing it and getting people to articulate it will be a valuable first step.

This interview was edited for length and clarity.

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