Anyone who thinks the Convention of the States is a good idea should ask the people of ancient Troy what they thought of the nice gift wooden horse the Greeks left outside their gates. Grateful, the Trojans brought it into their city. Then the Greek soldiers hidden inside jumped out and sacked the town.
The Mississippi legislature has passed a resolution calling for a convention of the states to rewrite the U.S. Constitution. Although the resolution states certain vague objectives, to which some now would like to add term limits, the first point to consider is that those objectives will not necessarily control what the convention will do. It should be remembered that the delegates to our first constitutional convention in 1787 were called “for the sole and express purpose of revising the Articles of Confederation.” But when they gathered they promptly threw out the whole document and started afresh. The American Legislative Exchange Council, which favors a Convention of the States to limit the number of U.S. Supreme Court justices, advocates a resolution restricting the purpose of a convention, but there is no precedent for that.
The second point to consider is the danger that the Constitution might be amended by representatives elected by a very small number of voters. To understand this, it is worth comparing the two different ways of amending the constitution.
The first way, and the one that has always been used in the past, is for an amendment to be approved by a three-fourths vote in both houses of Congress and then ratified by the legislatures of three fourths of the states.
The convention process is different. The constitution says if two-thirds of the states ask for a convention, it can be called and amendments it proposes become law if they are approved by the legislatures of three-fourths of the states.
U.S. Supreme Court Justice Potter Stewart once pointed out that the legislative process does not ensure majority rule. Because 51% of the representatives can control a result, and each of those representatives can be elected by 51% of the voters in a district, it is possible that a majority of the representatives can be chosen by as few as 26% of the voters. That math provides a useful way to compare the amendment methods.
In the case of Congress, the three-fourth’s requirement means that, when Congress proposes an amendment, it can only be approved if 75% of the representatives, each elected by 51% of the voters in their districts, favors the amendment. That means that, at a minimum, the representatives favoring the amendment would represent, at the very least, roughly 38% of the voters.
But with a Convention of the States, the math is very different. Congressional districts have similar populations, but the same is not true of the states. California has almost 40 million people while Wyoming has just over half a million.
What this means is that the number of voters needed to control a Convention of the States is quite small. If the voting is by state, then the 26 smallest states, which contain 19% of the country’s population, could hold a majority even though their representatives could have been chosen by legislatures who represent only 26% of the voters in each state. In other words, about 5% of the nation’s population.
Similar calculations show that there is not much protection for the majority in the requirements for calling or ratifying the work of a Convention. The smallest two-thirds of the states contain 32% of the nation’s population and the smallest three-fourths contain 41% of the nation’s population. If the legislative majority in each state were chosen by 26% of the state’s voters, then that means about 8% of the nation’s voters could call a convention and about 10% could ratify an amendment.
Of course, these figures are extreme. They assume perfect gerrymandering and, no doubt, if a Convention were called, the representatives would be chosen by far more voters than these numbers suggest. But this mathematical exercise does provide a useful way to illustrate the anti-majoritarian and potentially undemocratic nature of a Convention of the States when compared to the historic Congressional method of amending the constitution.
Calling a Convention of the States is essentially a way for a small minority of the nation’s voters to have their way because they cannot muster the support needed to get their ideas adopted by Congress, where the House of Representatives, which is apportioned based on population, stands in their way.
Not only should the Mississippi legislature not amend its resolution calling for a Convention of the States, but it should repeal the resolution it previously adopted. The greatest threat to good government today is not the lack of term limits. It is the threat of anarchy fueled by a concerted attack on the very idea of government. The one thing we do not need to do is to put our whole system up for grabs in an undemocratic Convention of the States. It is difficult to think of anything that would make the Russian and the Chinese governments happier than for us to descend into the chaos that could bring.