Why Hasn't There Been Another Constitutional Convention?

The United States Constitution has been amended just 27 times; not too shabby for a yellowed scrap of parchment that turns 230 in 2017. Article V of the Constitution establishes two rules by which the founding document can be amended: either when two-thirds of both houses consider it necessary, or when two-thirds of the states call for a Constitutional Convention.

The first Constitutional Convention was held in Philadelphia from May to September of 1787. From it came the United States Constitution, which was ratified by the states and went into effect in 1789, and established what still serves as the base of our federal government. There have been no more Constitutional Conventions since — every single amendment to the Constitution has been first proposed by Congress and then ratified by the states.

So why haven't there been any further amendments added by a Constitutional Convention called on by the states? For this we turned to John Vile, professor of political science at Middle Tennessee State University and author of more than 35 books on the Constitution and its amendments, including "Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution." 

"The thinking at the original Constitutional Convention was that for most ordinary matters, hopefully Congress would be responsive and would propose the amendments the people needed,” Vile says. "But what if Congress isn't effective? What if states really have a grievance and congress won't listen to them? [The Article V convention] was designed to provide balance. This way you have a mechanism for the national government to propose amendments, and also a mechanism for the states."

So, if the states have this weapon for proposing Constitutional amendments without Congressional approval, why have they never pulled the trigger?

"One of the reasons we've never called an Article V convention is that the Constitution doesn't really tell us how it would work," Vile says. "How many representatives would there be, who would pay them, where would they meet and what would the rules be?"

The biggest question is whether Congress or the states would set the rules. If you read the language of Article V closely, it authorizes the states to vote for a convention, but Congress is still in charge of "calling" it. That appears to put Congress in charge of the convention. But some scholars argue that the very existence of Constitutional Convention is to provide an "alternative" to Congress, meaning the states should call the shots.

Vile says that some scholars believe that another Constitutional Convention should consist of one representative per state, like the original in Philadelphia, but he prefers one with a distribution closer to the electoral college, with representatives elected by congressional districts.

Even though the states have never officially called an Article V convention, they have used the threat of a convention to put pressure on Congress. The 17th Amendment, Vile says, was probably the result of states threatening to call a convention. The 1913 amendment called for senators to be elected by popular vote instead of by state legislatures, and was unlikely to have passed without the outside pressure.

Since then, many different groups have tried to rally support for Article V conventions, if only to make Congress sweat.

"There's a group that wants to call a convention to impose term limits on Congress," Vile says. "There's another group that favors a convention to deal with balanced budgets. There's another group pushing an amendment to eliminate riders on legislation. If the bill says 'health care,' in other words, then you can't attach an agricultural subsidy to get someone to go along with it."

The Convention of States Project is a national organization calling for an Article V convention to rein in the power and authority of the federal government. The organizers believe that the framers of the Constitution inserted the convention clause as a check on federal overreach. The late Supreme Court justice and Constitutional "originalist" Antonin Scalia was a fan.

One of the arguments against Article V conventions is that, once convened by states, they could propose and pass just about any amendment they want. And once an amendment is ratified, even the Supreme Court couldn't deem it "unconstitutional," because it would be part of the Constitution.

In that case, Vile says, the only way to reverse the decision of a misguided Article V convention would be for Congress, or another state convention, to repeal the original amendment. The 21st Amendment repealed the 18th, after all.