Stephen Gottlieb: Should We Have A New National Constitutional Convention?
There have been calls for a new national constitutional convention. They are generally cast as calls for a convention to do something specific, rather than open-ended authority to propose changes. There is an argument about whether those calls fit the constitutional definition of state initiated calls for a convention and what such a convention might do, But clearly many states think they are valid and have proposed a new convention. Indeed such calls may be only a few states shy of the required two-thirds of the states, depending on how many calls are deemed valid. So I think we should talk about it. I’ll spare you the technical argument and focus on the issues.
It should be noted that small states have disproportionate voting power in the amendment process because it is based on the number of states agreeing to amendments, not the number of votes in the states which agree.
Conservative proposals to amend the Constitution suggest that they’d use a national convention to repeal the Supreme Court’s decisions on social issues like abortion, marriage, gay rights, religion, prayer, flag desecration and segregation. And some conservative proposals would cripple the national government with states’ rights amendments, like a balanced budget amendment, repeal of the income tax, mandatory revenue sharing, and letting states veto increases in the national debt. Other conservative efforts have included reinstituting state legislative selection of U.S. Senators, and reversing progress on school integration.
Liberals can use conservative proposals to scare liberal state legislatures away from calls for a new national convention, or they can try to scare conservative state legislatures off with liberal proposals.
Liberals proposals focus on equal rights and equal votes such as the Equal Rights Amendment, abolition of the electoral college, full representation for the District of Columbia, and overturning Citizens United. There’ve been calls to abolish the death penalty. Liberals should also fight for a Black Lives Also Matter Amendment to hold public officials responsible for the harm they do and overturn exemptions and immunities that leave decent, unarmed Americans lying dead on our streets with no one "responsible." Liberals should fight to remove rules that allow prosecutors to ignore constitutional obligations of fair play, rules that immunize them from any responsibility for vicious and discriminatory behavior.
These very different visions reflect both core moral commitments of each side and tactical considerations. Neither liberals nor conservatives accept the bona fides of each others’ proposals. Worse, competing interpretation of the provisions of the Constitution for calling a new convention could deepen conflict over the legitimacy of whatever a convention produced. And I doubt we’d end up with a better country.
Nor does the problem ends there. The original substitution of the Constitution for the pre-existing Articles of Confederation “illegally” ignored the rules for change spelled out in the Articles. So suppose populous states now similarly announced they were forming a government to go into effect when a majority of the public agrees – a possibility with some academic support. By contrast to continued conservative admiration for Confederate traitors who made war on the U.S., that would be a relatively honorable route toward a new Constitution.
But the larger point is that a conservative attempt to make major changes followed by a strong liberal response could br dangerous. Competing constitutions once led to violence in Rhode Island and in Kansas. Violence, as we’ve been discovering in many countries in recent decades threatens democracy whenever armed groups refuse to put down their arms.
So I’m not confident that a new convention would improve the Constitution, solve problems among or unite us. I don’t think it’s a good direction to travel.
Stephen E. Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School emeritus and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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