JURIST Guest Columnist Roy Ulrich, of University of California, Berkeley, discusses potential constitutional reforms in the wake of the most recent US national election. . .
After the midterm elections, it is worth considering how we might change our founding document, the U.S constitution, and update it so that it reflects the times we live in. One glaring example of a needed update is the Electoral College.
Actually, I should say “eliminate” instead of “update”. Specifically, Article II, Section 1, Clause 3 should be deleted and replaced by an amendment which provides for a direct, popular election for president in the same way we elect U.S. Senators.
In 2016, Hillary Clinton won the popular vote by almost 3 million, but Trump was elected because of this anachronistic relic of the 18th century. Actually, Democrats have been calling for changing the way we vote for president at least since 2000, when Al Gore garnered 500,000 more votes nationally than George Bush, but Bush became our President when the Supreme Court famously stopped the vote-count in Florida.
“No society can make a perpetual constitution,” Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. “The earth belongs always to the living generation and not to the dead. . .. Every constitution, then, and every law, naturally expires at the end of 19 years.” By that calculation, we’re more than two centuries behind schedule for a long, hard look at our most sacred of cows. And what it reveals isn’t pretty. The one we have practically guarantees gridlock and is almost impossible to change. The US Constitution is more a relic of the 18th century than a workable plan for government in the 21st.
Six years ago, Supreme Court Justice Ruth Bader Ginsburg said in a television interview in Egypt that “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” Ginsburg urged Egyptians instead to emulate more recent legal documents, which allow amendments to be added more frequently, including the Constitution of South Africa (1997), the Canadian Charter of Rights and Freedoms (1982) and the European Convention on Human Rights (1950). The United States is an outlier in this regard.
Furthermore, a study conducted by David Law, a law professor at Washington University in St. Louis, concluded that our Constitution’s global appeal has diminished markedly over the past half century. Fewer and fewer nations are modeling their own constitutions on the American version.
The familiar part of Article V of the Constitution states that Congress, with the two-thirds approval of both the House and the Senate, can propose amendments to the Constitution, subject to ratification by three-fourths of the states. But there is a second path: “on the application of the legislatures” of two-thirds of the states, Congress “shall call a convention for proposing amendments,” the amendments being subject to ratification by three-fourths of the states.
A convention called by the states for the purpose of altering the Constitution has never taken place. Not even once. And there is an excellent reason for that: The founders put up great barriers to using it. As the journalist Daniel Lazare has observed, “Moments after establishing the people as the omnipotent makers and breakers of constitutions, [the 1787 US Constitution] announced that. . .[c]hanging so much as a comma in the Constitution would require the approval of two-thirds of each house of Congress plus three-fourths of the states. . .. The people did not assert their sovereignty in Philadelphia in 1787. Rather, the founders invoked it. Once they uttered the magic incantation, moreover, they hastened to put the genie back in the bottle by declaring the people all but powerless to alter their own plan of government.”
What is more, there is no set of instructions for “a convention for proposing amendments,” in the sparse language of Article V.
What could go wrong in an Article V convention? The honest answer is everything. The scariest prospect is for a “runaway convention.” Still, as historian Paul Starobin has suggested, “Our political times are raucous, but to wait for tranquility for a convention is to wait possibly forever; it should be recalled that the delegates in Philadelphia gathered in an atmosphere of crisis, amid angst that the republic could not survive under the Articles of Confederation. . .So while there is a risk to a convention under Article V, there also is an appreciable risk in doing nothing, of leaving the political situation to fester as it is.” What is more, should that happen, the finished product would have to be approved by the legislatures of 38 of the 50 states.
Constitutional scholars who have studied the issue say there are two types of constitutional conventions that can be called: general and limited.
- The general convention would be free to consider any and all additions to the Constitution, as well as alterations to existing constitutional provisions.
- The limited convention would be restricted by its call to authorizing legislation to consideration of a single issue or group of issues, as specified by the states in their applications
Put another way, conventions can be open and general, or limited, depending on the applications of the legislatures.
The most prominent group calling for an Article V convention today are self-identified as conservatives who go by the name of the “Convention of States.” The organization is calling for a limited convention for the purpose of imposing fiscal restraints on the federal government, limiting its power and jurisdiction, and imposing term limits on its officials and members of Congress. But they set up no rules governing the convention’s proceedings, making the likelihood of a runaway convention real.
Its cause de jour is passing a balanced budget constitutional amendment. The group is now six states short of reaching the constitutionally-required 34 applications to convene a balanced budget constitutional convention. In response, liberal groups, many law professors, judges, and newspapers have issued a call to prevent such a convention. Their objections are best summarized by Allen Rostron, a constitutional law scholar at University of Missouri Law School:
“Whatever one thinks about these proposed amendments, trying to pass them through an Article V convention is a risky business. The Constitution does not specify how the delegates for such a convention would be chosen, how many delegates each state would have, what rules would apply at the convention or whether there would be any limits on what amendments the convention could consider. A convention that was called to address a specific issue, such as budget deficits, might propose changes to freedom of speech, the right to keep and bear arms, the Electoral College or anything else in the Constitution. There is no rule or precedent saying what the proper scope of the convention’s work would be.”
But suppose the rules for calling a convention were established beforehand and had to be strictly adhered to. If this were the case, a progressive call for a constitutional convention might look like this:
- Call would be for a general convention
- 535 delegates, the total number of House and Senate seats
- Delegates chosen by election or by the state legislature
- Each state assigned the same number of delegates as it has in the House of Representatives, to comply with “one person, one vote” requirement.
- two-thirds supermajority required to pass an amendment
- Delegates must include members of 3rd parties and independents
- Protection for Bill of Rights guaranteed (except, possibly, the 2nd Amendment by limiting the right to bear arms to those serving in a militia.)
Yes, because the rules are established in advance, it will be very difficult to reach the 34 state threshold. But Article V sets no time limit to gain the 34 states required.
As for the issues progressives might want to consider, there are many: overturn Citizens United v. Federal Elections Commission; eliminate the Electoral College and replace it with popular vote for President; expand the number of House members; establish regular and periodical Article V conventions, perhaps every 25 years; establish a federal right to vote; establish a federal privacy right; create an affirmative right to food, healthcare, and shelter; mandate non-partisan redistricting for the House of Representatives; establish 25-year terms for the US Supreme Court; eliminate or reign in the filibuster in the Senate; adopt the equal rights amendment; amend Article V by reducing the ratification threshold from ¾ to two-thirds of the states.
The last suggestion would make the process of amending the constitution easier. That would align the country with other western democracies such as Germany and France.
Note that I have not mentioned the undemocratic Senate. (Wyoming, with a population of 600,000, has the same number of Senators as California, whose population is 40 million.) The barrier to fixing the Senate is the last phrase in Article V which reads that “no State, without its consent, shall be deprived of its equal representation in the Senate.” Theoretically, a constitutional convention could vote to (1) delete the phrase and eliminate the body or (2) somehow reduce its power. However, there is almost no chance a supermajority of the states would agree to such a change.
University of Texas Constitutional Law Professor Sanford Levinson may have said it best:
“We must recognize that substantial responsibility for the defects of our polity lies in the Constitution itself. A number of wrong turns were taken at the time of the initial drafting of the Constitution, even if for the best of reasons given the political realities of 1787. . .If I am correct that the Constitution is both insufficiently democratic, in a country that professes to believe in democracy, and significantly dysfunctional, in terms of the quality of government that we receive, then it follows that we should no longer express our blind devotion to it.”
Blind devotion to the Constitution must end. It should not be viewed in sacred terms. We must begin to think of it as a fallible legal document that should be periodically updated with the times.
Roy Ulrich is a lecturer in the Political Science Department at the University of California, Berkeley.
Suggested citation: Roy Ulrich, A Progressive Call for a Constitutional Convention, JURIST – Academic Commentary, Dec. 4, 2018, https://www.jurist.org/commentary/2018/12/roy-ulrich-progressive-convention/
This article was prepared for publication by Patrick Sherry, a JURIST Senior Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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