Could America’s Constitution be on the cusp of a massive rewrite? A recent article said that Democrats fear Republicans at the state and national levels will try to do so after President-elect Donald Trump takes office in January.
These worries are greatly overblown. However, they do point toward a constitutional mechanism that some well-meaning Americans wrongly support.
We should begin with the relevant text of the Constitution. Article Five details how to modify our governing document. Other than the Bill of Rights in 1791, we have amended the Constitution a mere 17 times. Each instance followed the procedure of approval by two-thirds of each chamber of Congress and then three-fourths of state legislatures. No serious efforts at even minor changes to the Constitution are coming out of this route.
However, Article Five gives another procedural option for amendment. Two-thirds of state legislatures could petition for a new constitutional convention, which Congress would then be obligated to call into existence. This convention would serve the purpose of “proposing amendments” to the Constitution. This never-used approach has some Democrats on edge, fearing its first manifestation in the coming years.
Many state legislatures have petitioned for a convention in the course of our nation’s history. They have done so regarding a long list of policy items, some now faded well into history. Scholars and politicians also have debated whether Congress should have called a convention in 1979 based on the number of live petitions then in existence. However, Congress has never done so.
Though they certainly possess the power, states should refrain from serious efforts to call a convention. One can understand the frustrations underlying recent attempts on this front. Many of these calls have come from political conservatives who have advocated, among other things, for term limits for Congress, a line-item veto for the president, and a requirement for a balanced federal budget.
While I do not agree with either term limits or the line-item veto, the underlying critique is sound. Citizens have made these calls in response to real and significant problems in our political system. Our Constitution sought to establish and maintain a republic based on the consent of the governed with limited governmental powers focused on the protection of individual rights.
Contrary to these purposes, the federal government has grown too distant from the people. Congressmen seem unresponsive to popular opinion on crucial issues. A large bureaucracy also has taken much decision-making away from our elected officials, heightening the distance between the governed and the governing.
Moreover, the size and scope of government has ballooned out of control. A government as big as ours seems beyond the people’s capacity to oversee and thus control. In addition, the goals of this government now extend well beyond the Declaration of Independence’s commitment to preserving the natural rights to life, liberty, and the pursuit of happiness.
Still, amendments to the Constitution likely would highlight and accentuate these problems instead of correcting them. The government has a constitutional duty to listen to the people. The government also has a constitutional duty to stay within the bounds of that document, serving as it does as the “supreme law of the land.” Though well-meaning, new text likely would just mean new evasions and violations.
The real answer is not another set of amendments but a renewed knowledge of and commitment to the text as it already stands. It means understanding the underlying principles on which the Constitution is built and a wise set of policy demands in accordance with those principles.
Again, the possibility of a convention changing anything in the Constitution is far-fetched. Even if a convention was called, any amendment language that comes out of it would need approval by three-fourths of state legislatures or state conventions to become part of the Constitution. Given the partisan state of politics now, such approval seems nearly impossible.
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However, we should take this overblown fear to consider the real means for reforming our politics. That reform needs to happen. But it should not come from amending the Constitution. It should come from better faithfulness to it on the part of our government — a faithfulness demanded anew from the ultimate human sovereign in this country, “We, the People.”
Adam Carrington is an associate professor at Ashland University.