Ratification Rules and the New (and Old) Constitutional Convention

Abstract

A primary target of criticism in Sanford Levinson's engaging and persuasive book is the distribution of power among states. Indeed, the first question Levinson asks us to consider in evalu ating the Constitution pertains to the equal representation of Wyoming and California in the Senate, despite the fact that the latter has roughly seventy times the population.1 Throughout the work, Levinson highlights a series of defects in the con stitution associated with state power: 1) the unequal voting power of citizens due to the organization of the Senate and the Electoral College; 2) the bias toward localism inherent in territorially based electoral districts;2 3) the uncertainty surrounding the question of whether a Puerto Rican-born citizen who recently arrived on the mainland could be elected president (unlike a Hawaiian3); and 4) the unacceptability of the power of thirteen states to veto constitutional amendments supported by a significant majority of the national population, as in the case of the Equal Rights Amendment.4 Yet the power to remedy these defects is contingent upon the role the states will play in designing the new constitution?and, most significantly, upon their capacity to ratify the constitution. Once the ratification mechanism is specified, the presence of a downstream constraint should then largely shape the propos als, deliberations, and outcomes of the assembly.5 That is, if we know that a given proposal will lead to the rejection of the draft constitution by an actor with the power to derail the constitution making process, such a proposal should not be adopted by the constituent assembly (unless, of course, there is some strategic benefit to forcing the actor to veto). Thus the ratification thresh old is of primary importance as it determines the contours of the constitution generally, and especially with respect to the powers accorded to the states under the constitution. To be sure, there would be significant normative benefits associated with taking the power to ratify the constitution out of the hands of the states, as Levinson suggests, drawing on the work of Akhil Amar.6 Yet under any of the scenarios for the triggering of the constitutional convention?a nationwide peti tion campaign aimed at urging each state's representatives and senators to call for a convention, appeal by the magic number provided under Article V of two-thirds of the state legislatures, or a disciplined campaign by a majority of states?the states play a significant role. As such, states would likely seek to ensure a role for themselves in ratification as a condition of participation in the convention. Though once the convention is underway, such a condition could be jettisoned?one need not look beyond the 1787 Federal Convention to find an example in which the constituent assembly was able to escape its condi tions of authorization?a constitutional convention structured around state ratification is, perhaps regrettably, the most likely scenario. Given such a role for the states, what should be the optimal threshold for ratification? Here I advocate a simple majority threshold, and in so doing, I turn to that famous supposed scourge of majoritarianism, James Madison. Though Madison of course feared the effects of self-interested major ity factions, he nevertheless regarded majority rule as the republican prin ciple. Drawing on Madison's insights, notably in Federalist 39, I suggest that to adopt a supermajority or unanimity threshold for ratification of a new constitution would be to abandon, if tacitly, the grounds upon which the legitimacy of the constitu tional project rests?the status of the United States as a nation, rather than a confederation of sovereign states contracting to form a more perfect union. Indeed, if I turn out?happily?to be wrong about the role of the states in the constitutional ratifi cation process and a popular mechanism is adopted, the case for simple-majority rule will become even easier to make.