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A Constitutional Convention Could Fix Old Problems — or Create New Ones

October 15, 2021 by Kate Michael
(Courtesy the National Archive)

WASHINGTON — The growing political divide and increased Constitutional review activity of the Supreme Court have some scholars, policy analysts, and legislators considering whether a convention to rewrite the Constitution could be in the nation’s best interest. Others say it’s a dangerous attempt to undermine democracy. 

State legislature and special interest groups on both sides have been saying that a Constitutional Convention could be called for years, but it hasn’t happened yet. However, new state applications for specific amendments have been filed this year. 

Currently, Charles Koch is seen as the guiding force behind the current conservative movement toward a convention. Largely, this is through his longtime effort to enact a Balanced Budget Amendment to the Constitution. But states have submitted applications for a balanced budget amendment (Indiana), limiting federal powers (Wyoming), and judicial term limits (Alabama) since the late 1950s. 

The framers believed that having some amending provision in the Constitution was of the utmost importance, with documented concerns over amendability among the most fervent discussions of the original Constitutional Convention. Thomas Jefferson himself believed the document, as written, would last two decades at most. So, the end result was Article V, which establishes two methods for amending the Constitution.

The first is through amendments that may be proposed by Congress, as the U.S. has seen happen 27 times. 

The second is by a convention called by Congress in response to applications from two-thirds of the state legislatures. But due to inconsistencies of thought on application rescission, it is difficult to count how many states have actually applied for a convention.

Recently submitted applications from Wyoming and Wisconsin suggest a current total of 28 states have applied for a Constitutional convention on the topic of a balanced budget amendment alone, but state legislatures have passed hundreds of resolutions calling for an Article V Constitutional Convention in the last 200 years.

“It is worth remembering that the people who drafted the Constitution did the best they could given the political science available at the time,” said Aziz Huq, professor of Law at the University of Chicago, speaking during a panel discussion on current efforts to bring about an Article V convention held by the American Constitution Society, a progressive legal organization. 

“During debates about Article V, [the framers] saw the need to revise [the document] in light of the learning they expected to happen in the future.”

But while some believe that a hard look at the Constitution’s current relevance could be an opportunity for progress, others contend the Constitution should hold fast as written — or at least maintain the amendment process that has led to its previous 27 changes.

A Constitutional convention scares many because, as David Super, professor of Law and Economics at Georgetown University articulated, “There is nothing in Article V that calls for a limited purpose Constitutional Convention,” and while only certain topics may be suggested for debate and reform — like a Balanced Budget Amendment — a convention opens the entire Constitution for a rewrite. 

“We cannot afford to be caught on our heels when it comes to an Article V Convention,” said Russ Feingold, former Wisconsin senator and current president of the American Constitution Society, who reminded that it isn’t just conservatives who seek to alter the nation’s written charter of government. 

“There are credible people on the left who also support a Constitutional Convention to [explore] progressive policies.”

The problem, as Feingold and others see it, is that a Constitutional convention could cause “even greater chaos in our country” and “propose any array of destructive amendments with the real possibility of their adoption.”

While some seek language limiting the jurisdiction of the federal government, a balanced budget, and term limits for all three branches of government among other suggested reasons to convene, any number of topics could be broached at a Constitutional Convention, including scrapping the whole document and starting anew. This is why many prefer what has become the U.S.’s traditional amendment process or are content to rely on courts to do what the amendment process hasn’t.

Special interest influence is one concern. Representation, lack of rules, and uncertain ratification guidelines are other worries.

“There are lots of unknowns about what would happen if an Article V convention were called,” said Carolyn Shapiro, law professor and associate dean for Academic Administration and Strategic Initiatives at the Chicago-Kent College of Law. 

While she admitted that any changes to the Constitution would, in the end, require widespread bipartisan support, she still felt the effort could be “ripe for suppression” given “30 states whose state legislatures are under total Republican control.”

“That does not reflect the widespread popular support we like to see in any Constitutional change,” Shapiro added.

If 34 states call for one, a convention would be called in which all 50 states send a delegation. Article V does not designate how delegates to any such convention should be selected, though each state would have one vote on each proposition of the convention, regardless of size or population. 

What is known is that the convention can propose amendments, whether Congress approves of them or not. Those proposed amendments would then be sent to the states for ratification, with a requirement of 26 states for acceptance and 38 for ratification.

There has never been a Constitutional Convention called by the states, but efforts that have long been underway seem to be coming to fruition. Now could be the time, though we have no clear idea what a modern Constitutional Convention could — or should — look like.

According to Huq, “The Constitution is a dynamic project that was informed by the best political science of the day, and it should be illuminated by the best of political science today.”

Kate can be reached at [email protected]

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