Time to rewrite the Constitution?
Last month, representatives from 22 states gathered in Arizona to plan the nation’s first constitutional convention since 1787.
Delegates railed against a Congress “drunk with power,” while protesters — including a lawyer dressed as George Washington and a retired schoolteacher in an Alexander Hamilton costume — gathered outside to chant “hands off our Constitution,” as their children napped on the lawn.
If it felt, at times, like community theater, it was more like an off-Broadway production on the brink of a breakthrough: The country, it turns out, is surprisingly close to staging a bona fide constitutional convention.
Article V of the Constitution allows two-thirds of the states to call such a gathering. And while it’s not entirely clear what that means — Do all the states have to request a confab on the same subject? Can you tack a 100-year-old request from Ohio onto a new one from Iowa? — advocates say they’re pushing up against the threshold.
The most mature effort, a push for a balanced budget amendment, has the support of 27 state legislatures — and supporters are hoping to line up the seven others they need, plus a couple more, by July 4.
If they succeed, critics say, the results could be disastrous — and not just because a balanced budget amendment could handcuff Congress during an economic crisis. The real concern: a runaway convention.
Delegates may gather to consider federal spending, but what’s to stop them from running roughshod over the entire Constitution? Polls show surprisingly tenuous support for basic American liberties. Could conventioneers bar flag burning? Ban Muslim citizenship?
Convention enthusiasts — left and right — say that’s just fearmongering. Article V stipulates that three-quarters of the states must approve any changes — putting a de facto bar, they argue, on extreme proposals.
The real risk, they say, isn’t calling a convention. It’s clinging to a 230-year-old piece of parchment that’s no longer up to the task. It’s assuming that our government will fix itself if we just give it a little more time.
The system, they argue, is broken in some fundamental way and the usual remedies won’t suffice.
When the nation faced a similar crisis in the late-18th century, James Madison, Benjamin Franklin, and the rest of the framers gathered at the State House in Philadelphia to do something about it. Now, proponents say, it’s time to gather again.
THERE IS another way to amend the Constitution: Congress can approve a change by a two-thirds vote, and three-quarters of the states can ratify it.
To date, that’s the only way the country has changed its founding document. And lawmakers have taken on some weighty topics: the abolition of slavery, women’s suffrage, and of course, booze — first outlawing it, and then making whiskey legal again.
But these days, the problem with our democracy is one that Congress isn’t all that eager to rectify: It’s Congress itself. Gerrymandering, always a problem, is now a crisis. The partisanship has become paralytic. And the bundles of unregulated campaign cash has only made matters worse.
“Our Constitution needs some pretty important repair and it’s absolutely clear Congress is never going to propose it,” says Lawrence Lessig, a left-leaning Harvard law professor and convention enthusiast. “In my view, [a convention] is the only option.”
Lessig, who waged a short-lived campaign for president in the last election, is partial to many oft-discussed fixes: publicly financed campaigns; a line-item veto for the president; and getting rid of gerrymandering. But other, less prominent, ideas deserve attention too, he says.
One of the most intriguing comes from a nonpartisan group called FairVote that wants to get rid of our winner-take-all election system, which protects incumbents and encourages them to cater to the extremes of their own parties.
The alternative: larger districts represented by multiple people, with the winners chosen by a system of ranked voting that would give political minorities more of a say. Republicans in Manhattan and Democrats in Oklahoma would be able to elect representatives who share their views, and that could disrupt Washington’s hyperpartisan calculus.
“If I’m a Manhattan Republican, I’m going to address certain kinds of issues that a Republican who lives in rural America doesn’t, and if I’m a Democrat from Oklahoma, I’m going to be attentive to some rural issues” that other Democrats might ignore, says Rob Richie, executive director of FairVote. “It’s changing what it means to be in a party, in ways that we think would be really healthy.”
Richie points to Illinois, which used a similar system for state-level elections from 1870 to 1980, yielding a bipartisanship in the state Legislature that would be almost unimaginable in Congress today. The scheme also opened the system to independents and reformers — the sort of candidates that voters say they want.
If the states provide some intriguing models for reform, so do foreign democracies. Take Europe’s decentralized power structure. While individual nation-states are united under the banner of the European Union, they retain substantial autonomy — an arrangement that might have a certain appeal in a country as big and fractured as ours.
There is, of course, an American version of this idea, and its history is fraught. “States’ rights” was a rallying cry for Southern resistance to racial integration in the 1950s and 1960s. But under the new Republican administration, even liberals are warming to the idea of local control.
Perhaps the left and right could agree on a series of constitutional amendments that confer new powers on states and regions, even as they reserve substantial policymaking authority for the federal government. Congress can require health care coverage for all, but why not let New England create a single-payer system to meet the mandate while Texas and Louisiana pursue a more market-oriented approach?
The system could lead to a productive, new wave of experimentation. But it could also take the edge off our partisanship. In a nation as divided as the United States, the election of a new president — whether Obama or Trump — is a trauma-level event for huge swaths of the population.
If the government felt more local, perhaps the trauma would not be so intense.
THE TROUBLE with the convention dream, critics say, is that it assumes a high-minded gathering of The People, when we’d almost certainly get a creature of our grubby, 21st-century politics instead.
State representatives, having named themselves as delegates, would preen before the cameras on the Rachel Maddow and Sean Hannity shows.
There would be talk, in the hallways, of swapping an assault weapons ban for new abortion restrictions and a bar on kneeling during the national anthem at football games. And super PACs would flood the airwaves with hundreds of millions of dollars in advertisements: “Call Delegate Jones and tell him we need more coal jobs.”
“It’ll be a swarm of big-money interests like we’ve never seen,” says David Super, a Georgetown law professor. “All the drilling and mining people who want to open our national parks for mineral exploitation — they’ll put in some amendments on that. And the super-rich will want to prohibit a progressive income tax. There will be other people who want to cap federal taxing and spending at a level that makes Social Security and Medicare impossible.”
And that’s just the stuff we’ll see.
“What happens if there is covert bribery, but we don’t find out about it until after the fact?” Super asks. “It’s sort of like, what if we had a presidential election and some foreign power intervened and we didn’t get all the facts until later? You’d still keep the president — and you’d still keep the Constitution.”
And that braking mechanism built into Article V —
the requirement that three-fourths of the states ratify a proposed amendment? What’s to prevent the convention from reducing the threshold to a simple majority of the states? After all, critics note, delegates to the constitutional convention of 1787 ripped up that era’s controlling document, the Articles of Confederation, and started from scratch.
A convention isn’t the only way to change the Constitution: you can also re-interpret it. The courts have done that for years now, and sometimes in very substantive ways — declaring school segregation unconstitutional, carving out a right to abortion, and ruling that same-sex couples have a nationwide right to marry.
Just last week, the Supreme Court heard a case on gerrymandering and could be on track to strike down the most nakedly partisan reshaping of legislative districts. But there are some problems we can’t interpret our way around.
For instance, says Harvard law professor Michael Klarman, “we have this Electoral College system which allows you to become president even though your opponent won two percent more of the vote — which is a lot of votes, 3 million votes.”
Ultimately, he says, you have to judge a convention like you would any other political endeavor: What’s the policy that’s likely to emerge, and do you like that policy or not?
The reality, on the ground, is that liberals and good-government types eager to abolish the Electoral College and publicly finance campaigns are minor players in the convention movement. It’s conservative activists who are at the vanguard — and they’re pushing amendments that stand a legitimate shot at approval.
Polls show that about 7 in 10 Americans support a balanced budget amendment — a figure that has held steady for decades now. And Mark Meckler, who runs the Convention of States project, is pressing for even more sweeping change.
His group is calling for a convention that endorses not just a balanced budget amendment, but broad reductions in the federal government’s authority, and term limits for members of Congress. “The issues that we have chosen,” he says, “have 75- to 80-percent support with the American public.”
Meckler brings some legitimate organizing chops to the effort. He cofounded the Tea Party Patriots and has signed up former US senators Tom Coburn and Jim DeMint to lobby state lawmakers.
In just three years, a dozen state legislatures have endorsed the project — including Arizona, North Dakota, Texas, and Missouri just this year. And Meckler says he is confident he can reach the two-thirds threshold by 2019.
It’ll be a challenge. There are signs, in at least some state capitols, of a growing wariness about a constitutional convention. This spring, legislatures in Maryland, New Mexico, and Nevada rescinded decades-old calls for conventions on a variety of issues, from a balanced budget amendment to stopping “forced integration in schools.”
But the movement has an undeniable strength. And for liberals who fear what might come of a right-leaning convention, trying to block it may not be enough. It could be time to start building a viable convention movement of their own.