Over the last few decades, pressure to amend the Constitution has come mostly from the right, but the left now seems as active. In the 115th Congress (2017-2018), there were 148 bills or resolutions proposing constitutional amendments.
That doesn’t capture the range of ideas mooted by citizens who are fed up with dysfunction and skeptical that significant reform will emerge from present political circumstances.
{mosads}The daily news reminds us we lack clarity concerning grave constitutional issues. Is the president shielded from criminal prosecution or civil suit while in office? Can the president pardon himself (or family members, co-conspirators and potential witnesses)?
What are the limits to declarations of emergency? Can the president purposefully close the government and reopen, without congressional authorization, only certain parts of it? The lack of clarity might have been endurable in the absence of specific hazards but seems irresponsible now.
The answer is a constitutional convention, but not one organized under the Article V process that is vulnerable to capture by foes of reform. Here’s why this is a propitious time to act, what realistically could be accomplished and who should lead it.
The time is now
By chronological measures, we seem overdue. Since the Bill of Rights, an amendment was ratified every 13.5 years on average. The 20th-century pace was quicker — one every 8.3 years. It’s been 27 years, however, since our last.
Among legal scholars and popularly, there is willingness to contemplate constitutional reform. Summing up an argument in favor, Sanford Levinson, a University of Texas law professor, wrote, “What concerns me most is our general tendency … to minimize the extent to which the American political system might indeed be significantly flawed.”
Lawrence Lessig, a professor at Harvard Law School, was as critical in a 2011 speech: “Government is an embarrassment. And it has lost the capacity to make the most essential decisions, and slowly it dawns upon us that a ship that cannot be steered is a ship that will sink.”
Some reformers believe President Trump poses a unique threat to American democracy: unconstrained by institutions, trampling norms of governance and comportment and disdainful and ignorant of the law.
Others recoil from controversial Supreme Court decisions or are alarmed by 21st century trends in society and technology that exacerbate the problem of money and disproportionate political influence.
We might be entering an era of constitutional ferment, periodic frenzies of reform that produced amendments during Reconstruction, the Progressive era and the Civil Rights era.
What could it realistically accomplish?
Though a citizen-organized constitutional convention can’t produce a document with legal status, it can responsibly establish the parameters of debate. Specifically, it could:
- persuade Americans of the need for more extensive structural reform than will result from the slow accretion of case law and changes in legislation, policies and norms;
- facilitate negotiations among reformers and build a broad mandate for nonpartisan amendments; and
- compel politicians to take positions.
Of the 30 most common constitutional amendment proposals (many represented in this list of congressional proposals here), at least 10 benefit from bipartisan interest already, and another 10 might attract broad support depending on how they were drafted and marketed.
Of course, there would be a logistical limit on the number of amendments moving simultaneously through the proposal-to-ratification pipeline. That said, constitutional history suggests drafting efforts cross-pollinate.
Paradoxically, it may be easier to generate energy for ratification of a packet of reformist constitutional amendments than just one (not least, because that would allow for horse-trading among advocacy groups).
A smart process
If generating pressure for reform is a primary goal, then process is as important as substance. Reformers would need a vigorous media operation to explain goals and report on progress, while combatting disinformation and politicized attacks.
Delegates should commit ahead of time to reform principles. Ideas could come from anyone, but a secretariat should have the power to control the text, adjudicate disputes and discard proposals that can’t possibly attract broad national consensus.
Digital tools could facilitate the conversation (e.g., Reddit-style up-and-down voting on proposals, “Wiki-mendment” drafting sub-committees, sentiment feedback graphs as delegates signal support or opposition in real-time).
Just as America’s Founders committed to pursuing the original Constitution’s ratification by state conventions but nailed shut the windows of Independence Hall while they deliberated, transparency about goals and outcomes is essential, but some of the mud work would have to happen off camera.
Risks
Preoccupation with constitutional reform might drain energy from non-constitutional efforts or fracture the reform coalition by stoking arguments about controversial texts. An examination of constitutional weakness risks degrading support for the checks and balances we already have.
An exploration of constitutional lack of clarity risks encouraging immediate power grabs. Bitter and abusive arguments could strengthen calls for a decisive leader who can muzzle the cacophony.
Skepticism comes from the left and right. Former Labor Secretary Robert Reich fears a “runaway convention” could change the Constitution for the worse. Common Cause has warned right-of-center groups are better organized and funded.
Former Supreme Court Justice Scalia remarked, “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?” Others have argued instead for influencing federal jurisprudence via state-based legal reform or academic scholarship.
Opponents may attack individual delegates in the press and social media. They are likely to have more money with which to influence public opinion. Of course, any subsequent ratification process could be hijacked by corrupt interests that outmaneuver citizen reformers.
Who Will Lead?
Many concerns can be ameliorated by preparation, and a privately organized drafting convention would be less vulnerable than an Article V one. So who can we trust to lead it?
America already possesses the equivalent in brain power and constitutional expertise to the “assembly of demigods” who toiled through the hot summer of 1787: today’s legal blogosphere.
{mossecondads}Our 21st-century mash-up of the Federalist Papers and Independence Hall should be run by co-chairs representing center-right and center-left.
They would not have to invite spoilers, but a citizens’ convention should be representative of America’s diverse talent, including politically and regionally, since its ultimate goal will be to propel amendments through the formal ratification process.
A citizens convention would be consistent with the Founders’ Enlightenment-era belief that people of goodwill can argue their way to mutually beneficial agreement — in this case, a “more perfect union.”
Joseph Cassidy is a global fellow at the Wilson Center and former State Department officer.