Written by: WILFRED CODRINGTON III AUGUST 28, 2017
“During this unsettled time in our nation’s history, the durability of our constitutional democracy is being tested in unprecedented ways. The bizarre events unfolding daily turn some of the most well-known constitutional provisions on their heads, and put rarely invoked ones in the national spotlight. For better or for worse—but mostly for worse—the current political scene compels us to brush off our civics textbooks to better understand these threats.
In less than a year, the rolling drama of Donald Trump’s presidency has given rise to unprecedented assaults on the Constitution. After Charlottesville and Phoenix, interest in the Constitution’s procedures for removing officers, including the president, whether through Article I impeachment proceedings or even the 25th Amendment, has reached a crescendo. The vast web of conflicts of interest among administration officials has brought new attention to the Emoluments Clause, an obscure constitutional provision until very recently. Article III, which calls for a strong, independent judiciary, is an important pillar in the separation of powers doctrine. Yet President Trump has questioned its legitimacy through repeated ad hominem attacks on federal judges and the bedrock principle of judicial review. Similarly, his ongoing assaults on the integrity of the Fourth Estate and the reputations of individual journalists threaten to undermine the First Amendment’s guarantee of a robust press.
Another provision in the crosshairs is Article V, which lays out the process for amending the Constitution. To say that it’s infrequently used would be a gross understatement. In the 230 years that our national charter has been in existence, it has been amended only 27 times; 10 times in its first five years alone. Moreover, each amendment came about through the same process: They were proposed by Congress, adopted by two-thirds of both chambers, and then ratified by three quarters of the states.
Conservative political advocacy groups backed by two separate, well-funded campaigns are now trying to amend the Constitution through a second approach, as The American Prospect reported earlier this year. If they can convince two-thirds (or 34) of the 50 state legislatures to pass resolutions, they will force what is known as an Article V convention for the first time in U.S. history.
These groups have focused most of their energies on trying to drum up support for a balanced budget amendment, a perennial favorite that conservatives often laud as the silver bullet for all economic woes. The effort began slowly in the late 1950s and the1960s. It then went into overdrive in the 1970s, and almost succeeded, but tapered off as state legislatures began to rescind their resolutions in the 1980s. Over the past decade, Tea Party conservatives regrouped and restarted the push for a convention. Building on the nearly successful attempt from decades ago, they now claim to have support from 27 state legislatures—seven shy of their goal. As the balanced budget initiative approaches the finish line, democracy watchdog groups like Common Cause have become increasingly concerned. Many fear a “runaway” convention, with delegates going beyond the states’ specific amendment proposals to pursue far more radical changes to the Constitution.
There is good reason to be concerned. Because the Constitution has never been amended using the Article V convention, the courts have yet to weigh in on the unique legal questions that the convention method raises. Since at least the 1960s, when the balanced budget amendment campaign first gained momentum, lawyers and constitutional law experts have disagreed sharply on whether the Constitution can restrain the delegates from going beyond the limited agenda items put forth to justify the convention. There is still no conclusive answer. There is not even consensus among convention supporters; some say that it may be difficult to limit a convention—and even unlawful—while others claim the runaway scenario is a fiction manufactured by liberals opposed to limited government.
Another conservative group is spearheading a separate effort that does not merely downplay the possibility of a runaway convention, it advocates for one—or at least its functional equivalent. Taking up the banner of federal government restraint, Citizens for Self-Governance is calling for a Convention of States “to restrict the power of the federal government, effectively returning the citizens’ rightful power over the ruling elite.” If it succeeds, the national charter would be subject to revisions restricting the ability of our elected representatives in Washington to regulate corporations, protect the environment, and safeguard hard-won civil rights.
The plan offers a deceptively simple claim: A so-called Convention of States would propose amendments to the Constitution to curtail government authority in three specific ways. They would impose national fiscal restraint, limit federal power and jurisdiction, and enact term limits for members of Congress and other officials. However, a closer reading reveals a plan that creates ambiguity—and deliberately so. States passing a resolution with such sweeping language may give convention delegates leeway to propose a wide array of other changes to the Constitution.
For example, what exactly does curtailing federal power and jurisdiction entail? Some proponents suggest the convention would have the power to dissolve Congress and mandate a national ID. So, perhaps the more appropriate question is what doesn’t it entail? And why limit one’s sights to a convention for a balanced budget amendment when one can get that, tax cuts, and the Federal Reserve on the agenda under the guise of fiscal restraint? The sheer breadth of the resolution’s language belies the claim that a “Convention of States” would be for a limited purpose—unless, of course, that purpose is to completely upend the current system.
One would be mistaken to dismiss the Convention of States as a crackpot scheme or the product of the right-wing fringe. It is a carefully planned campaign backed by prominent conservatives. Well-known politicians have become the face of the movement, including Texas Governor Greg Abbott, former Senator Tom Coburn, and former Senator Jim DeMint, recently ousted from the helm of the Heritage Foundation. The president and co-founder of Citizens for Self-Governance, the organization driving the campaign, is also the co-founder of the Tea Party Patriots. When you pull the curtain back a bit further, you find the American Legislative Exchange Council, which drafted the model legislation that is being adopted by the states, and Koch affiliates pulling the strings.
Amending the Constitution requires not just big goals and influential backers, but also an eye for the long game.
Amending the Constitution requires not just big goals and influential backers, but also an eye for the long game. The conservative strategy to shift power away from the federal government to the states is as old as the nation itself; almost nothing has motivated them like the enduring force of the states’ rights doctrine. Yet nothing can rival the destructive and lasting effects of the policies that its most ardent proponents have pursued. From the long-term perspective, then, it is not clear that the states are best-suited for resolving weighty, national problems. Through this historical lens, one cannot be blind to the irony of the campaign: The convention to curb federal power in accordance with the “Framers’ vision” would undermine the very reason why Framers scrapped the Articles of Confederation for a Constitution that created a strong central government.
The Constitution vests awesome power in federal officials. Some powers are specific and enumerated, like Congress’s ability to tax and borrow money. Others, like the power “to make all laws … necessary and proper,” are less specific, but serve important goals like empowering the federal government to set national policy. The Convention of States threatens to upend these powers and more with a never used constitutional provision. However, its advocates have been honest to some extent. A convention of states would accomplish three things: rolling back cherished rights, diluting our national values, and eviscerating the structures in place to preserve both.
The Constitution is also rooted in compromise. Indeed, Article V itself “split the baby,” not just by setting out two ways of amending the Constitution, but also by preventing key elements of slavery from being the subject of legislation. Even in their meticulous drafting, the Framers understood that the Constitution would be amended over time, including to address America’s peculiar institution. Though they crafted the document in secret, they envisioned subsequent changes to the Constitution in accordance with the values they prioritized: a robust, transparent, public debate, resulting in deliberate action in furtherance of a stronger, more perfect union.
Whether one subscribes to constitutional orthodoxy, iconoclasm, or something in between, we can all agree that altering organic law is serious business. Americans should not wait until the 11th hour to discuss the merits of such consequential changes, including the wisdom—or folly—of enshrining into our Constitution narrow policy prescriptions on the one hand, and vague, borderline meaningless dictates on the other. The republic is likewise weakened by political efforts that ignore the greater historical context.
The Constitution does not belong to any group of representatives, but a diverse American constituency. Without broad buy-in from an informed public, the legitimacy of moves to amend it is suspect, even more so when they seek change via an uncertain, uncharted path. It is the preeminent job of lawmakers to educate themselves and their constituents about amending the document, and doing so requires more than wholesale acceptance of the “expert” views of partisans and the corporate interest groups that back them.
Issues of this significance deserve to be debated in a wide range of public forums, including legislative hearings and town halls, television and radio, college campuses and other broadly accessible venues. It is also incumbent on the media and other parties, like academics and historians, to report on the inaccurate premises underlying efforts for a Convention of States, and disclose questionable ties of the groups promoting them.
At a time when our democracy is already under strain, conservatives with a radical vision for the country want to overhaul our founding document, offering the country little more than false assurances about an obscure constitutional mechanism. Americans cannot afford to remain idle students during this important civics lesson.