State Constitutional Conventions Explained

Louisiana may be on the verge of overhauling its constitution — a move that would mark the first time in four decades that any state has held a constitutional convention. The nation’s last such convention was in Rhode Island in 1986.

Louisiana most recently held a convention 50 years ago, when it adopted its 11th constitution. The state’s Republican governor, Jeff Landry, has made updating the state’s constitution a core part of his legislative agenda, but he’s provided few details about the changes he hopes to make. Opponents of a convention have criticized the lack of transparency, and interest groups have spoken up demanding guarantees that various parts of the current document be preserved. One chamber of the state legislature — the house of representatives — voted in favor of a constitutional convention. The state senate is expected to take up the proposal by June 3, the end of the current legislative session.

The possibility of a constitutional overhaul in Louisiana warrants a closer examination of the history, procedures, and purposes of state constitutional conventions. State constitutions significantly differ from the U.S. Constitution. Whereas the federal government may only exercise powers specifically enumerated in the Constitution, state governments possess broad authority to protect and promote the well-being of their residents unless the relevant state constitution says otherwise. This difference in purpose partially explains why the process for amending or revising the U.S. Constitution is far more onerous than what’s generally required for state constitutions. The U.S. Constitution has been amended only 27 times in 235 years and never subject to a complete revision, while the average state constitution includes 115 amendments and has been revised five times.

The revision of a constitution is a big deal. If an amendment is akin to adding a new chapter to a book, then revision is like writing an entirely new book, or at least some of its most important parts. In other words, revision of a constitution includes the possibility of altering its basic principles — and may even result in an entirely new constitution. Amendments usually refer to single, specific changes to a constitution. That’s why revision usually requires the more elaborate processes of a convention, whereas amendments are frequently achieved through less formal means like ballot measures. Yet most people do not know that their state has its own constitution, let alone that the document has likely been rewritten on several occasions, with significant potential ramifications for their rights with each new version.

How States Call for a Constitutional Convention

In most states, the process for calling a constitutional convention is established in their constitution, and states use a wide range of approaches. In 13 states, a recurring ballot measure automatically gives voters a chance to call for a convention without collecting signatures or seeking legislative approval. People in Alaska, Hawaii, Iowa, New Hampshire, and Rhode Island automatically have the chance to vote for a convention every 10 years. The question appears on ballots in Michigan every 16 years. And in Connecticut, Illinois, Maryland, Missouri, Montana, New York, Ohio, and Oklahoma, voters consider whether to hold a convention every 20 years. No state has used this mechanism to initiate a convention since 1984, when Rhode Island voters approved the question and held a convention two years later.

Some states authorize the legislature to pose the question of whether to call a constitutional convention to the people. State constitutions specify different voting thresholds for each of those actions. For instance, in Alabama, only a bare majority of each legislative chamber must back a constitutional convention question before it goes to the voters; in turn, a simple majority of the people can initiate that convention. In California, a two-thirds vote by each chamber is required to refer the question to the people, though a simple majority of the people can call the convention.

Other states — Georgia, Louisiana, Maine, South Dakota, and Virginia — allow for their state legislature to call a convention without the people’s consent. Any constitutional changes proposed at the convention must then be approved by voters. For example, in Louisiana, the governor hopes that a convention can wrap up in time for a revised constitution to be put to voters in this fall’s election.

Eight state constitutions do not specify how to call for a constitutional convention. In some of these states, like Pennsylvania and Vermont, the legislature has occasionally referred the question to voters via ballot initiative, even absent explicit constitutional guidance on the proper procedure.

Procedural requirements for conventions also vary from state to state. Generally, a convention occurs within a year of being triggered, may consider all “necessary” revisions, and may include popularly elected delegates. However, some state constitutions, like Louisiana’s, do not thoroughly outline the requirements for a convention. Louisiana’s constitution simply specifies that a convention can be called by a two-thirds vote of the elected members of each house and that the work of the convention, from proposed revisions to an entirely new constitution, must then be ratified by the people. What’s unclear is who can serve as a delegate to that convention, how long that convention can last, and what public participation, if any, is required throughout that convention process.

State Constitutional Conventions in History

One commonality across states is that constitutional conventions — whether initiated by voters or by the legislature — seem to have fallen out of favor. After a steady stream of convention activity from the 1770s through the 1970s, during which almost 250 state constitutional conventions were held, there has not been a single convention for almost 40 years.

Even during the 200 years when conventions were called with some regularity, they came in waves. The vast majority revolved around one of three events: First, both at the time of the founding and when a state later sought admission to the union, states called conventions to align with popular expectations and, with respect to the latter, to receive congressional approval. Second, all confederate states held conventions after leaving the union around the time of the Civil War. Third, many of these states again revised their constitutions through a convention when they rejoined the union.

Of the remaining 82 state constitutional conventions that were not tied to one of these events, Wake Forest University professor John Dinan identified three issues that tended to incite a wave of revision: judicial selection, legislative apportionment, and fiscal issues such as taxation and debt.

A particularly large wave took place from the 1830s to the 1850s, when many states opted to reform their judicial systems to reduce concerns about a lack of independence. The public had grown tired of political parties exerting excessive control over the selection of judges, and seven states called conventions to provide the people, the legislature, the governor, or some combination of those actors, more say in the selection and retention of judges. Judicial selection prompted constitutional conventions during later periods as well — Pennsylvania, for example, made relevant changes to its constitution in 1967.

Another wave occurred in the mid-1800s to increase the ability of state governments to build critical infrastructure like roads, canals, and railroads. Reforms adopted during these conventions included new means to raise revenue and to reduce the odds of the state defaulting on its debts. Revenue-related conventions were also called in California and Tennessee, though these efforts involved reforms to address income inequality brought on by regressive tax structures.

The most recent wave of constitutional conventions started in the 1960s in the wake of several decisions by the U.S. Supreme Court. Those decisions, per Dinan, “mandate[d] that legislative districts be apportioned according to a one-person/one-vote principle.” A number of states turned to conventions to make necessary changes out of convenience, as conventions in some states may be initiated sooner and put in place changes faster than under state amendment processes. Other states relied on conventions for more substantive reasons, such as the fear that a piecemeal amendment process might lead to undesirable or unintended changes.

Constitutional Conventions Are Now Rare

Today, constitutional doldrums have set in. Professor Gerald Benjamin of the State University of New York at New Paltz has attributed this “convention-phobia” to two concerns: first, an unlimited convention could lead to sweeping, unpredictable changes, including to government structure; and second, a convention may be taken over by a faction with particular ideological goals.

Some Louisianans are fearful that the current push for a convention may be the sort of faction-led convention Benjamin warned of, as the governor’s efforts have included little outreach to or inclusion of people beyond his allies. These concerns are exacerbated by the tight timeline for the proposed convention, which requires it to wrap up by mid-August. Daniel Erspamer, CEO of the conservative Louisiana-based Pelican Institute for Public Policy, has tried to dispel those concerns by assuring the public that the convention efforts are not “some secret backroom thing.”

Whether Louisiana kicks off a new wave of revision or furthers convention-phobia will likely turn on the extent to which the proposed convention operates in a transparent, inclusive, and deliberative fashion. A convention held in a smoke-filled room populated by a cherry-picked group of officials dead set on ratifying partisan proposals could reinforce concerns among the public that conventions carry more potential for ill than good. Though some partisan officials may look to such an undemocratic convention as a model to expedite massive reforms, average Americans will hopefully see such power grabs for what they are and rally in opposition to any similar proposals.

Regardless of what the future holds for Louisiana, consideration of a convention should spur voters and lawmakers alike to study their respective state constitutions and consider what changes, if any, would better align it with the wants and needs of the people.

Kevin Frazier is an assistant professor of law at the Benjamin L. Crump College of Law at St. Thomas University.