"The US Constitution Is Over 2 Centuries Old and Showing Its Age"

This essay was published in The Nation.

At noon on Tuesday, September 12, 71 delegates gathered in the chamber of the State House of Representatives in Phoenix, Arizona. A sign near the entrance featured an official logo that bore a gold-plated inscription: Article V: History in the Making.

Nominated by 19 Republican state legislatures, the men and women in Phoenix—all of whom, the Arizona Republic said, “appeared white”— assembled to organize a convention of the states, a never-before-tried method for amending the US Constitution.

“Some are saying about us, ‘They are no Hamilton. They are no Jefferson,’” said Kelly Townsend, the Arizona state representative who served as chair of the Phoenix convention, speaking to a reporter. “No, we are not. But we are the stewards now. They found the courage to stand up, and now it’s our turn.”

The US Constitution is the most difficult to alter of any in the world. Article V lays out two ways to propose amendments: with the support of two-thirds of both houses of Congress, or by a convention of states called by Congress upon the request of two-thirds of the states. Whichever way it’s put forward, an amendment then has to be approved by three-quarters of the states—either by special conventions or by both houses of the state legislatures (save for Nebraska, which has a single chamber). The first method for proposing an amendment—the one that begins with Congress—has been employed all 27 times the Constitution has been changed. In the nearly two and a half centuries since the Constitution was ratified, the second method—a convention of states—has never been used.

As its name suggests, the purpose of the Balanced Budget Amendment Planning Convention in Phoenix was to set the ground rules for a future convention that would consider only that single amendment. Pitched as a reasonable constraint on the profligate spending habits of Congress, and predicated on long-debunked arguments equating the fiscal responsibilities of a nation with those of a household, the balanced-budget amendment has been a decades-long obsession of the conservative movement. Its passage would result in the almost immediate contraction of the federal government, whose expenditures could no longer exceed revenues in any given year. Powerless to borrow its way out of a recession, the government would have to cut spending at the very moment it was most needed. The result would be catastrophic.

Much of the movement’s momentum comes from the American Legislative Exchange Council, the corporate-financed behemoth that pushes conservative legislation through state legislatures. ALEC’s preferred mode of politicking—writing model bills and finding compliant lawmakers to introduce them—makes it well suited to coordinate action in dozens of state capitals. Meanwhile, the State Policy Network, a collection of 64 think tanks in 49 states—funded by the Koch, Coors, DeVos, and Walton families—produces op-eds and other promotional materials that tout the need for such a convention.

Twenty-seven states have passed resolutions calling for a convention to propose the measure, according to the Balanced Budget Amendment Task Force, which helped organize the Phoenix meeting. That tally includes several resolutions passed many decades ago, and some of those states could rescind them as the movement approaches the two-thirds threshold. But supporters are unfazed. A motion passed in Phoenix suggests that the movement’s backers hope to hold a convention of states before the end of 2018. That’s unlikely, but not impossible: There are seven states where such a resolution has yet to pass but where both houses of the Legislature are controlled by Republicans—just enough to hit the magic 34.

Though it has the most states signed on thus far, the movement for a balanced-budget amendment isn’t the only one eyeing an Article V convention. The Convention of States (COS) Project advocates for one that wouldn’t be limited to the balanced-budget amendment, but would be free to consider other small-government reforms. Advised by former South Carolina senator Jim DeMint, until recently president of the archconservative Heritage Foundation, the COS Project emerged out of Citizens for Self-Governance, a group started in 2015 by Tea Party impresario Mark Meckler to create “the largest grassroots army in the history of the United States.” Last January, Meckler explained the Article V movement to a conservative paper: “The hordes have broken through the gates of Washington, DC, and now, at this very moment, is the time we should tear the structure down.”

A motley coalition, ranging from the nonpartisan watchdog group Common Cause to the far-right John Birch Society, has now emerged to prevent an Article V convention. In January, Richard Kogan of the left-leaning Center on Budget and Policy Priorities published a study on the potential negative effects of a balanced-budget amendment. An otherwise valuable contribution to the debate, the report was spoiled by a sidebar warning that a convention “could open up the Constitution to radical and harmful changes.” Apparently, in order to criticize a particularly egregious proposal for amending the Constitution, one must also swear off one of the few democratic provisions already in it.

The arguments against a convention of states are often ahistorical, relying on mistakenly glorified notions of the 1787 Constitutional Convention. An editorial in The Washington Post last April was typical, suggesting that, while the original convention “turned out pretty well,” a new one might meet with “far more doleful results.” The editors were particularly worried that the Constitution’s requirement of support from threequarters of the states to ratify any amendment might itself be tossed aside in a convention. It wasn’t altogether implausible, the paper observed: “The 1787 constitutional convention ditched preexisting ratification rules; who is to say a 2018 convention could not?”

The editorial was referring to a provision in the Articles of Confederation that required the states to unanimously approve any amendments—a stipulation that was ignored by the 1787 convention. But if the Constitution that emerged from those proceedings “has worked pretty well for a pretty long time,” as the Post argued, why assume that updating it wouldn’t turn out just as well? In his report, Kogan noted that the Philadelphia convention “went far beyond its mandate.” It did so, of course, to come up with the very document that is now apparently too sacred to revisit.

This contradiction—praise for actions of the framers, followed by warnings against trying to replicate their efforts—can be found throughout the arguments against a new convention. Just think, the Post urged its readers, of how much could go wrong: “Sparsely populated states could impose their will on the majority of Americans who live in densely populated ones.” Of course, that’s exactly what happened in 1787, and we’re still living with the consequences. It’s why Wyoming (population: 586,000) enjoys the same representation as California (population 39,250,000) in the Senate and has a disproportionate influence in the Electoral College. It’s difficult to imagine a new convention producing a political system more skewed toward rural states than the one we have now.

An op-ed in the Post in 2014 offered a more general objection:

One can readily imagine a convention leading to extensive “log-rolling,” where delegates backed certain changes to the Constitution in return for others’ support for their own preferred changes. A sprawling package of alterations could emerge, designed to build support for the overall package by including the favored fixes of single-issue constituencies.

Yet the delegates in Philadelphia in 1787 also backed changes pushed by others in exchange for support for their own favored measures. They too agreed to a “sprawling package of alterations.” With a few reservations, American schoolchildren are still taught to revere it.

Seven years ago, liberals scoffed at the Tea Party for its worshipful invocations of the founders. These days, protesting in 18th-century costume has become one of our few bipartisan practices. Outside the Capitol in Phoenix, an anti-convention demonstrator dressed as Alexander Hamilton told a reporter that his character had been “instrumental in writing the Constitution, and we are trying to maintain that Constitution and not have it changed.” That, of course, would be the same Alexander Hamilton who worked longer than anyone to repeal the Articles of Confederation and replace them with a constitution more pleasing to the rich. “The republic is sick,” Hamilton wrote in 1781, “and wants powerful remedies.”

The left wasn’t always this historically naive. As the writer Daniel Lazare described in his 1996 book The Frozen Republic: How the Constitution Is Paralyzing Democracy, constitutional change was at the center of the original Progressive agenda. Populists called for a system of national referendums, while Socialists pushed amendments for a graduated income tax, women’s suffrage, and the abolition of the presidential veto. The Progressive Party’s Robert La Follette ran for president in 1924 on a platform demanding congressional power to override Supreme Court decisions as well as the election of federal judges. The 17th Amendment, which instituted the popular election of senators, passed in Congress after members were spooked by the growing movement to address the issue via a convention of states. Between 1911 and 1929, there were 18 proposals in Congress to amend Article V to lower the bar for new amendments.

Meanwhile, intellectuals challenged the infallibility of the founders. “There was nothing particularly sacred about the origin of this government which should render any attempt to change it sacrilegious,” the journalist Algie Simons, a founder of the Socialist Party, wrote in 1911, two years after New Republic co-founder Herbert Croly, in The Promise of American Life, decried the country’s “insidious tradition of conformity—the tradition that a patriotic American citizen must not in his political thinking go beyond the formulas consecrated in the sacred American writings.”

Compare that with a 2016 report—ominously titled “The Dangerous Path”—in which Common Cause professed to “sound the alarm” about the Article V movement. It quoted, approvingly, former Supreme Court justice Antonin Scalia, who once said that a new convention would be “a horrible idea.” His reasoning: “This is not a good century to write a Constitution”—as if we can afford to wait for a better one.

Something is seriously wrong when progressives align themselves with the most hidebound originalists while conservatives embrace the doctrine of a living Constitution. The institutional left’s opposition to thoroughgoing reform has created a vacuum that’s being gleefully filled by the right. During her fall book tour, Hillary Clinton told Vox that an Article V convention would be “disastrous for our country,” because it might lead to “pull-em-up-by-the-roots change.” That, however, is just what this nation needs and what the restive voters of both parties so obviously seek. Rather than ridicule the efforts to adapt the Constitution for the present day, small-D democrats ought—with eyes wide open—to join them.

“Proposed amendments to the U.S. Constitution seldom go anywhere,” read the headline of a recent study by the Pew Research Center. Only 20 of the more than 700 proposals introduced in Congress since 1999 have come up for a full vote in either chamber. Unsurprisingly, entrenched interests with a vested stake in the status quo have blocked any initiative that threatens them. A convention of states, therefore, is the best remaining option for sorely needed constitutional reforms.

One part of the “package of alterations” so feared by The Washington Postcould be an amendment to suppress the influence of money in politics. Just a few years ago, only progressives were trying to push an amendment to overturn the Supreme Court’s Citizens United decision. Now a handful of conservatives have become interested in the cause. Richard W. Painter, the former White House ethics lawyer under George W. Bush, has argued that the corporate funding of elections increases wasteful spending and interest-driven government regulations. John Pudner, who worked on Virginia Representative Dave Brat’s insurgent primary campaign against former House majority leader Eric Cantor, leads a group called Take Back Our Republic, which goes after “those who seek to buy political favor.” Polls consistently show bipartisan support for campaign-finance reform.

Perhaps the most prominent opponent of Citizens United has been the Harvard law professor Lawrence Lessig, who ran a long-shot campaign for the Democratic presidential nomination in 2016. Given the impossibility of getting a “representational integrity” amendment passed in Congress, as well as the apparently successful conspiracy to keep the judicial branch in Republican hands for the foreseeable future, Lessig’s only hope rests with a convention of states.

In a recent phone call, Lessig observed that the movement behind the Phoenix convention is strictly partisan and therefore likely to fail. Article V is clear: Any amendment would have to be ratified by special conventions or by both chambers of the legislature in 38 states. A truly “crazy” amendment, as Lessig put it, would draw opposition from at least 13 states, guaranteeing its defeat. No amendment has ever made it into the Constitution without popular support.

The left’s scare tactics about Article V, Lessig said, only help feed the very fund-raising machine that is the cause of our problems. He has received e-mails from the Democratic Congressional Campaign Committee soliciting money to fight the pro-convention menace, and Emily’s List sent one out in late September. “I don’t fear a so-called runaway convention,” Lessig said, addressing the idea that delegates might go after gay marriage or reproductive rights. “What I do fear is a country that has become convinced it is no longer mature enough to consider amendments to its constitution, that believes it is too sacred for ordinary people to touch. I just reject that. Basically, it’s saying there’s nothing we can do but go ahead with a constitution that, as currently interpreted, is subverting representative democracy.”

Another piece of such a package could be the abolition of the antidemocratic Electoral College. Designed to bolster the power of slaveholders, the Electoral College now acts as political life support for their ideological descendants. Though states that benefit from it may protest, it’s possible that, as the popular-vote margins of defeated candidates over victorious ones grow larger, more people will recognize the Electoral College for what it is: a threat to the government’s legitimacy. Throughout American history, there have been hundreds of attempts to abolish the Electoral College. All began in Congress, and all failed. It’s time to try another way.

The convention might also come to an agreement on term limits for Supreme Court justices. Lost amid last year’s imbroglio over replacing Scalia was the absurd nature of the position itself: Why should a president be able to appoint justices who shape the life of the nation many years after that politician has left office? The rights, liberties, and general welfare of the American people could remain subject to the whims of Chief Justice John Roberts, a former lawyer in the Reagan administration, until the middle of this century.

A few constitutional scholars have suggested nonrenewable 18-year terms on the Supreme Court, which would see a new justice nominated every other year. The idea has won favor on the left and the right. In a small but significant way, term limits could restore a modicum of sanity to the Supreme Court selection process. No longer would concerned citizens have to consult the tea leaves to see how long this or that octogenarian might hold out. Every president would get to nominate two justices per term. (If a justice did die in office, her seat could be filled by a lower-court judge or a retired justice.) As constitutional scholar Erwin Chemerinsky has said, “Eighteen years is long enough to allow a justice to master the job, but not so long as to risk a Court that reflects political choices from decades earlier.” According to one poll, two-thirds of Democrats and over three-quarters of Republicans support term limits for Supreme Court justices. The question would at least provoke lively and profitable discussion in a convention of states, and perhaps even gain widespread support.

Other issues now pressed by the left—the right to health care, education, housing, the vote, even a basic income—could also be raised in a convention of states. Delegates might be encouraged to think more daringly about ways to make the government itself more responsive and transparent, such as through federal ballot initiatives, referendums, or the popular recall of elected officials. There’s no reason that bold progressive ideas can’t be introduced and advocated with just as much tenacity and organizational panache as the Kochs bring to the balanced-budget crusade. The left shouldn’t be afraid of a “runaway convention.” It should welcome one.

In his chapter on an Article V convention in Republic, Lost: The Corruption of Equality and the Steps to End It (2015), Lessig suggests a grand bargain: “The key is a simple compromise. We get to consider our proposals if you get to consider yours.”

A week after the Phoenix planning convention adjourned, I spoke on the phone with Sanford Levinson, a legal scholar who, for more than a decade, has been a prominent liberal supporter of a new constitutional convention. A North Carolina native and a professor at the University of Texas School of Law, Levinson argues that we should put “our undemocratic Constitution,” as he termed it in the title of a 2006 book, up to a vote. If a majority voted against it in a national referendum, there would be a new convention to reconsider the whole structure.

Rather than have the delegates appointed by state legislatures or chosen in special elections, Levinson would like to see a lottery select a few hundred Americans to participate in the convention. “If you plucked out the most obscure American and said, ‘You’re going to have a chance to wrestle with the most fundamental issues and to decide how your children and grandchildren would live,’ they would rise to the occasion,” Levinson argued at a 2011 Harvard Law School conference. “The fact is, we are not talking about rocket science. We’re talking about making fundamental value judgments that require some information, but delegates could get that information during the convention.” He would also delay for a decade the implementation of any reforms, to allow the participants to debate changes on the merits and not through the lens of short-term partisan advantage.

“The most basic, fundamental question,” Levinson told me, “is whether we will get a serious conversation about constitutional reform only after a genuine catastrophe.” He noted that countries tend to approve new constitutions only when they emerge from some calamity, as in Germany and Japan after World War II, or as a way to avoid one, as in South Africa in the 1990s.

Far from exacerbating the country’s divisions, Levinson said, a new constitutional convention would be a productive way to address our debilitating political tensions. “We are a very divided country,” he observed, “but one of the reasons we’re divided is the complete frustration, across party lines, that nothing really matters because, whoever is elected, there’s any number of reasons your agenda will not get through.”

As bad as things look, Levinson hopes the awful state of US politics has pushed Americans to the verge of a breakthrough. “My belief is that it’s in a time of potential catastrophe that you might actually generate some clarity of mind,” he said. “That’s what led to the 1787 convention—the belief that they had an imbecilic system, which if they didn’t change would bring warfare, dissolution, and economic collapse. They understood the need to act to prevent things from getting even worse.”

Though there has never been an Article V convention of states, the preliminary planning meeting in Phoenix was not without precedent. The event’s official website, hosted by the Arizona Legislature, trumpeted the fact that the delegates were doing something that “has not happened in over 156 years.” “This is indeed historic,” an assemblyman from West Jordan, Utah, told the Arizona Republic on opening day. “This is the first time since 1861 that we’ve been here.”

Both were referring to the Washington Peace Conference, when 131 delegates from 21 states gathered at Willard’s Hotel on Pennsylvania Avenue a month before Abraham Lincoln’s inauguration to find a way out of the secession crisis. Left unexplained by the convention’s website and the gentleman from Utah was how the invocation of a failed attempt to prevent the Civil War was supposed to make anyone feel better about the proceedings in Phoenix. But the evident implication—that an Article V convention is our best remaining chance to prevent a breakdown in the US constitutional order—might not be far off base.

Article V’s provision for a convention of states is the Constitution’s safety valve, a last resort when the ordinary functions of politics are obstructed and the pent-up pressures grow too great. Its purpose was to prevent the kind of constitutional coup d’état to which the framers themselves resorted when the existing system proved unresponsive during a crisis. As the delegates in Philadelphia knew, it was precisely the growing sense that the Articles of Confederation could not be amended that sealed their demise.

In the late 19th century, the New England poet and journalist James Russell Lowell warned against thinking of the Constitution as “a machine that would go of itself.” Without regular maintenance, it would sputter, stall, break down. Today, our government is a malfunctioning mess, and it will not fix itself. If we don’t open the safety valve soon, the machine will explode.