The Maryland General Assembly is considering legislation calling for a federal constitutional convention to overturn the U. S. Supreme Court’s Citizens United decision, in which the court held that laws that prevent corporations and unions from engaging in certain forms of political advertising violate the First Amendment. While the decision in Citizens United v. FEC is poorly reasoned and has proven deeply corrosive to our representative democracy, the proposed constitutional convention to correct the Supreme Court’s error may be a cure more harmful than the disease.
Article V of the U.S. Constitution provides that the legislatures of two-thirds of the states can direct Congress to call a convention to propose amendments to our nation’s fundamental charter. That mechanism has never been used in our constitutional history. Perhaps that is because of the enormous uncertainly associated with such an enterprise. The text of Article V provides no guidelines or rules on how a convention would work, leaving many unanswered questions about whether a convention can actually be limited to one issue.
While the proposal now before the Maryland legislature seeks to limit the convention to a single set of issues, there is nothing to prevent the delegates to the convention from taking up other questions. Indeed, the one historical example we have went beyond its own call.
The Philadelphia Convention of 1787 was called to propose amendments to the Articles of Confederation, but delegates quickly decided to write an entirely new constitution. In addition, Article XIII of the Articles of Confederation required the unanimous consent of all the states for amendment and required that this consent be provided by each state’s legislature. The framers not only departed from the unanimity requirement, they also departed from the Articles by directing that ratification be accomplished in conventions in each state.
A new convention, even if called only to propose a specific amendment, could also range far from its original purpose. And, even if an Article V convention did not rewrite the U.S. Constitution completely, enormous harm could come from relatively small amendments. For example, an amendment allowing the president to suspend the First Amendment if deemed necessary for “national security” reasons, or one altering the citizenship provisions in the Fourteenth Amendment, would dramatically affect the rights of many people.
While Article V requires Congress to call a convention upon the applications of two-thirds of the states, the constitutional text makes no provision for the states to limit the agenda for such a convention.
In addition, it is unclear based on the text of Article V whether Congress can direct the delegates of a convention to limit their work to the particular subjects identified in the states’ applications, whether Congress can specify the manner of selection of the delegates or their number or whether Congress can set out the procedures to be followed.
In the 1939 case Coleman v. Miller, the Supreme Court held that the process for amending the Constitution involves “political questions” that federal courts may not decide. Thus, were the convention’s agenda to expand beyond the call of the states and the charge provided by Congress, there is reason to worry that it might not be subject to the restraint of any standing institution of government.
Finally, there is potential for special interest money to influence the convention. This is precisely the sort of distortion of the democratic process that so concerns those who oppose the Citizens United decision, but it also makes the prospect of a limited convention that does no harm even more unlikely.
The lack of clear rules of the road, either in the text of the Constitution itself or in historical or legal precedent, makes the selection of the convention mechanism a choice whose risks dramatically outweigh any potential benefits. The members of the Maryland General Assembly should think long and hard before exposing the citizens of the state to such an experiment.
Richard Boldt (firstname.lastname@example.org) is the T. Carroll Brown Professor of Law at the University of Maryland Francis King Carey School of Law.