The Development of the Periodic State Constitutional Convention Referendum

• In Event: Advocacy Politics

Abstract

Fourteen U.S. state constitutions mandate a periodic state constitutional convention referendum (PCCR), with the specified period between referendums ranging from ten to twenty years. On average, at least one PCCR referendum is on a state ballot every two years, with three on the ballot in 2022: Alaska, Missouri, and New Hampshire.

Currently, most states with PCCR lack the popular constitutional initiative, so PCCR is the only available mechanism in those states to bypass the legislature’s gatekeeping power over constitutional amendment. Prior to the advent of the popular constitutional initiative in the late 19th Century, PCCR was the only available mechanism in any U.S. state to bypass the legislature’s gatekeeping power over constitutional amendment.

This paper uses a variant of constituent power theory to analyze PCCR history in U.S. states since the Revolutionary War. Specifically, constituent power theory is used to focus on the significance of the conflict of interest between the constituent power (“the people”) and constituted powers (the people’s government representatives) at the initiation stage of the constitution making process. It contrasts with “modernization theory,” which focuses on the debate between James Madison and Thomas Jefferson concerning how hard it should be to amend a constitution.

These two theoretical prisms lead to a focus on different types of issues when analyzing constitutional amendment mechanisms. For example, constituent power theory focuses on the comparative difficulty of amendment by constituent vs. constituted powers, whereas modernization theory focuses on the difficulty of amendment in general.

After briefly presenting and discussing a state-by-state chronological account of PCCR’s development, the paper describes the broad democratic and political tendencies in the development of PCCR, including its organic emergence from the late-18th Century to mid-19th Century as a constituent empowering mechanism and its narrowing democratic function as state constitutions incorporated competing legislature controlled constitutional amendment mechanisms. The result of these and other developments was increased opposition to PCCR from not only constituted powers but also the special interest groups that excel at influencing them. This opposition included not only opposing yes votes on PCCR referendums but fostering PCCR’s institutional decline.

The paper closes with a paradox: to the extent that the PCCR mechanism is democratic, constituted powers have an incentive to oppose and undermine it. And to the extent that constituent powers believe that constituted powers will be successful in corrupting the process, they will agree with constituted powers that a convention is too risky to call.

Author

• J.H. Snider, The State Constitutional Convention Clearinghouse