For years on the right, an idea with a few passionate adherents has been the establishment of a new popular convention to amend the Constitution. If you’re unfamiliar with the concept, that’s not surprising: There’s only been one in American history, the one that was established to write the Constitution. There’s a story that, once that task was accomplished and the delegates left Independence Hall in Philadelphia, a citizen asked Benjamin Franklin whether they had a Republic or a Monarchy. Franklin allegedly replied, “A Republic, if you can keep it.”
These days, that phrase is cited any time one side feels threatened by the other. What’s less well understood is that a convention remains, in modified form, a viable mechanism by which to amend the United States Constitution. You’re probably familiar with the traditional route to amend the Constitution: the House and Senate pass an amendment with two-thirds of the vote, which then must be ratified by three-quarters of the states. The convention option bypasses Congress entirely: two-thirds of the states can call for a convention, the results of which would then need to be ratified by three-quarters of states.
This approach has been advocated by conservatives to address a number of proposals that Congress routinely (and, for the most part, wisely) ignores: term limits, a return to the gold standard, and requiring the federal budget to be balanced, among others. The problem with proposing such a convention to amend the Constitution is that it’s not entirely clear that it could be limited to any one issue. Academics have long expressed concerns that, once such a convention is convened, they could rewrite any or all of the Constitution itself, since its powers would only be checked by the ratification requirement.
Now, these conservative proposals haven’t really gone anywhere because – even if you bypass Congress – it’s still a pretty high hurdle to get two-thirds of the states to agree on anything, never mind three-quarters. Not even all conservatives are united on any of these issues, and lately liberals haven’t supported them either, nor have they polled particularly well. While they’re passionately supported by their advocates, they’re nowhere near reaching a critical mass to amend the Constitution by either method, no matter how good a talking point they may seem to be on the campaign trail.
What’s interesting about this method is not just the potential for chaos, but the potential for abuse. As long as the concept has been limited to a subset of conservatives, that’s not much of a concern, but that could well change. Recently, progressive activists have been expressing frustration not just with Democrats’ inability to establish a permanent majority, but with the structure of American democracy itself.
We’ve seen this in calls to eliminate the legislative filibuster, change the Supreme Court, and eliminate the Electoral College. While advocates have framed all of these proposals as reasonable, just reforms that would simply move the country toward a more ideal democracy, they all would in fact be radical alterations of the very nature of our form of government. That’s why these ideas have gone absolutely nowhere in Congress itself: the more reasonable voices in the Democratic Party recognize that, and a few of them are even willing to say so publicly to refute the base. Probably many of the elected Democrats who are publicly supportive of these proposals are privately thankful for their more courageous colleagues who are willing to oppose them publicly.
The question is whether liberal activists, stymied not only by the structure of American democracy but by their own party leadership, might move toward embracing a convention to achieve their loftier goals. Even if such a convention could be limited in scope, activists wouldn’t have to do so: The topic could be purposefully vague, like “reforming democracy.”
The problem with such a convention – as with any other time either side changes the rules to suit their own ends – is that the other side could always go further in the future. A successful convention could inspire a broader effort in the future; moreover, if it were only narrowly ratified, there’s an open question of how the dissenting states might react.
That’s why it’s important to view proposals for “reform” with skepticism: Such changes inevitably provoke further abuses and increase division, rather than truly making real progress. Incremental progress may be frustrating to activists on both sides, but it’s the best way to move the country forward while preserving our democracy.
Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins. He can be contacted at:
jwfossel@gmail.com
Twitter: @jimfossel
Send questions/comments to the editors.
