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Stopping a Dangerous Article V Convention

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Explaining Ron DeSantis’ effort to call a convention of states and amend the US Constitution

Explaining Ron DeSantis’ effort to call a convention of states and amend the US Constitution

PolitiFact February 1, 2024

By Louis Jacobson and Samantha Putterman

He dropped out of the 2024 presidential race, but Florida Gov. Ron DeSantis, who had pushed to “make America Florida,” is still aiming to shape national policy.

DeSantis is proposing an alternative method of proposing U.S. Constitutional amendments that would let states call a convention if enough of them ask Congress.

In a Jan. 29 Naples news conference, DeSantis said he would ask the Republican-controlled Florida legislature to pass four resolutions that would compel Congress to call a “convention of the states” aimed at passing those same resolutions as constitutional amendments.

“Washington’s never going to reform itself,” DeSantis said in the conference. “It’s going to require us working in our individual states using the tools that the Founding Fathers gave us to be able to take power away from D.C. and return it back to the American people.”

When contacted for comment, DeSantis’ office pointed to two Florida Senate measures, one calling for the balanced federal budget and the other for congressional term limits. The other two reforms, presidential line-item veto power and equal laws for the public and members of Congress. so far lack accompanying bills.

If this sounds confusing, that’s because it is. Usually, a constitutional amendment is passed when Congress approves it by a two-thirds margin, then sends it to the states, where three-fourths must approve to ratify.

The alternative method DeSantis advocates is also spelled out in the U.S. Constitution, which says:

“The Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which … shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.”

These guidelines would require 34 states to call a convention. Even if the Florida Legislature approves proposals, 33 other states would have to approve the same proposals to have a convention. And if those amendments were eventually approved by a convention, ratifying each one would require 38 states to concur.

In the Constitution’s nearly 237-year history, such an assembly has never been called. Nevertheless, DeSantis and other conservatives see this tactic as part of a broader movement to achieve their policy goals.

However, some legal scholars and advocacy groups say the method’s untested history invites problems, as does the the Constitution’s lack of guidance about how a convention would be structured and limited.

The idea’s opponents fear that the convention could make radical constitutional revisions beyond its original focus.

The language in the Constitution “seems pretty simple, but lots remains entirely unclear,” said Frank O. Bowman III, a University of Missouri law professor.

What’s required to meet the threshold to call a convention?
Although the concept is often called a “constitutional convention,” or “con-con” for short, Robert G. Natelson, a retired University of Montana law professor and a senior fellow at the libertarian-leaning Independence Institute in Denver, said the term is a misnomer, because the Constitution’s wording refers to a “convention for proposing amendments.”

Legal scholars say key aspects of how to execute the count for calling a convention remain murky.
In the early 1990s, Michael Stokes Paulsen, now a University of St. Thomas law professor, determined that over time, 45 states had called for a general convention, without a specified topic. But it’s unclear whether the framers intended a convention to be so wide open.

Many scholars believe states’ proposed amendments must be narrower, and tied to a specific policy topic.
Backers of a balanced budget amendment say they have 28 states on board already, although the validity of some of these states’ proposals might be legally debatable, said Georgetown University law professor David Super. Even if all proposals were valid, six more states would need to join to invoke a convention.

Another complicating factor is that states can rescind past resolutions that supported a convention; several states have done this in recent years. By the time Paulsen revisited this idea in 2011, the number of states calling for a convention had dropped from 45 to 33, because of repeals. That’s one less than the 34 required to invoke a convention.

How would a convention be structured?
Issues Super said are “completely undetermined” include who would select the delegates, how much representation each state would have, how proposals would be grouped for voting and what kind of a majority would be necessary to approve amendments.

Michigan State University law professor Brian Kalt said, “Presumably, the legislature of each state would choose a process for selecting delegates. But there is no precedent. The delegates assembled would have to come up with their own system.”

The Constitution does not spell out an explicit role for the president or the courts in organizing a convention, or a role for Congress beyond telling the convention to meet in the first place. The Supreme Court, meanwhile, has tended to avoid what it deems “political” questions, legal experts said.

Even if the Constitution clearly says Congress “shall” call a convention, it’s unclear who could enforce that mandate if Congress chooses not to — a realistic possibility if the amendments would reduce Congress’ institutional power.
“We just don’t know,” said Jonathan Marshfield, a University of Florida law professor.

What would be the convention’s scope?
If the convention were prompted by a specific proposed topic, such as a balanced budget amendment, it would seem to have limits.

Natelson, who moderates a website about conventions like the one DeSantis is seeking, said the Constitution’s wording — a “convention for proposing amendments” — is noteworthy because it specifies that the existing constitution must be amended, not that an entirely new document can be introduced.

Absent constitutional guidance, historical precedent, or an external enforcement mechanism, however, not everyone is sure those guardrails would hold.

“The biggest fear that people usually mention is that of the ‘runaway convention’ that starts proposing all sorts of things outside of its original remit,” Kalt said.

There’s a precedent for this — in the original Constitutional Convention of 1787.

“A fair number of delegates thought that their task was simply to propose amendments to the Articles of Confederation,” Bowman said. “The idea that a whole new structure should be proposed wasn’t settled until after everyone arrived.”

How likely is a constitutional convention?
Scholars broadly agree that the concept of a convention is valuable: It was designed to act as an institutional check on Congress.

If Congress is dysfunctional — as many Americans believe — a convention could be “a lever that would push it in the right direction,” Marshfield said. “I see some value in that.”

However, getting 38 states to agree to ratify an amendment, experts said, would be exceedingly difficult in an age of solidly red and blue state legislatures.

“The country is very polarized, and anything that doesn’t have significant support in both parties doesn’t have any chance of being added to the Constitution,” Kalt said.

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