There are two ways that constitutional amendments can be sent to the states — by a 2/3 vote in both houses of Congress, or by a convention called on the demand of 2/3 of the states. But there are also two ways that states can vote on the amendments: by a vote of the legislature or by a vote of a specially called state convention. Under the U.S. Constitution’s article V, Congress gets to choose whether to call for ratification by legislatures or conventions.
What are the pluses and minuses of Congress asking that any proposed Federal Marriage Amendment be voted on by state conventions? As I understand it, only the Twenty-First Amendment (the repeal of Prohibition) was ratified that way. My recollection is that this was supposedly because the amendment’s backers thought their opponents (the pro-Prohibition forces) had more power over legislators than they would over convention delegates chosen for the sole purpose of voting on the Twenty-First Amendment.
This explanation is not implausible: A politically well-organized minority is often able to block proposals in the legislature, even if they’re supported by a majority of the voters. There are more procedural blocking maneuvers available in the legislature. To pass an amendment, one needs a majority vote of both houses (except, of course, in Nebraska). If the opponents of an amendment are better-organized and more intensely committed to the issue than are the supporters, then legislators may fear retaliation from the organized and intense minority more than from the less well-organized majority. And if the opponents of an amendment are powerful within the majority party in the legislature, they can often block the amendment by calling on party discipline within the institution. (Incidentally, an intensely committed minority’s ability to win in a legislature may be a good feature of the legislative process, not a bad one. I’m simply observing that it is a feature of legislatures more than of special-purpose conventions or of direct popular votes.)
So my very first, extraordinarily tentative thought is that if the polls show broad public support for the particular proposed Federal Marriage Amendment, then calling for ratification by conventions would probably increase the chances of the Amendment being enacted. The majority popular support should translate fairly well into a convention majority (subject to the complexities caused by the delegates being chosen on a district-by-district basis); and it should be harder for the minority to block this majority support. (You may well ask: If this is so, why haven’t more amendments been submitted this way? I answer: I have no idea, which is why this is an extraordinarily tentative thought of mine; I might be completely wrong.)
On the other hand, if the polls show broad public support for the FMA, then calling for ratification by legislators would probably increase the political benefit to the party that most supports the FMA (likely the Republicans). If a pro-gay-marriage minority has enough power in, say, California to block the anti-gay-marriage majority’s preferences, then it will do so by getting some Democratic legislators to vote against the views of their constituents (or at least in getting them to acquiesce in blocking any vote). This would be bad for the FMA’s chances of passage, but good for Republicans’ prospects of getting elected. (Possible caveat: If the Republicans generally benefit from talk about the FMA, and if a convention vote is more likely than a legislative vote to happen right around the general election, then conventions might be politically better for the Republicans.)
I stress again that these are extremely tentative thoughts, and I reserve the right to utterly repudiate them should I be persuaded that they’re wrong. Still, it might be good to start thinking about this, since there seems to be at least a decent chance of the FMA actually getting the 2/3 vote in both Houses.
Items people might want to research: How quickly could the state conventions be called? Are delegates selected by popular vote in each district (in existing legislative districts, or specially defined districts?), by at-large popular vote of the whole state, or through some other mechanism? Is a majority vote enough for ratification in each convention? I believe that the convention rules are a matter of each state’s law, so this could be a major research project, unless there’s already a reference work that discusses this.
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