Political discontent doesn’t necessarily mean that the country’s Constitution has failed. It may mean the opposite, that the Constitution has succeeded in giving people voice and in empowering them to act on their political aspirations. Yet as soon as there is some upheaval in American politics, some thinkers immediately start blaming the Constitution. Currently, there is an effort underway (see story below) to call another Convention to fix the Constitution’s shortcomings.
There was a similar buzz in the early 1980s. Many proposals were made to alter the basics of the U.S. Constitution. In 1982, Arthur Schlesinger, Jr., an aide to President Kennedy, published ‘Leave the Constitution Alone’ in The Wall Street Journal. It was a classic response to all those who argue that modern problems are complex and require a new constitution. “It cannot be that, nuclear weapons apart, we face tougher problems than our forefathers,” he wrote. “Tougher problems than slavery? the Civil War? the Great Depression? World War II? Let us take care to avoid the fallacy of self-pity that leads every generation to suppose that it is peculiarly persecuted by history.”
Sound advice indeed!
[Excerpts of article first published in Harvard Political Review]
An Imperfect Union: The Case for a Second Constitutional Convention
By Samarth Desai
A Second Constitutional Convention may seem like an ivory tower pipe dream, but it has a concrete foundation in the text of the Constitution. Under Article V, the legislatures of two-thirds of the states could convoke a convention to propose amendments to the Constitution. As a recent article in The New Yorker noted, last year’s elections put Republicans only one state legislature away from the magic number, with all but four of the Republican-controlled states having already passed resolutions to call for an Article V convention.
The case for a Second Constitutional Convention becomes more persuasive with each passing year. Five months into his presidency, President Trump has historically low approval ratings for a new president. Congress is faring even worse: according to one recent poll, only 14 percent of Americans approve of the job Congress is doing. A majority of people believe that the country is heading in the wrong direction, and the 112th, 113th, and 114th Congresses have been the three least productive in modern history.
As America inches closer to its tricentennial, American democracy is collapsing. The government created by the Constitution in the late 18th century isn’t functioning as well in modernity, and it’s worth considering the possibility that the root cause is not partisanship or polarization, but the constitutional design of the United States itself. If that is the case, then the solution may be to act preemptively and redraft the structure of American government from the ground up, starting with a Second Constitutional Convention.
We the Living
Perhaps the first person to propose a Second Constitutional Convention, albeit implicitly, was Thomas Jefferson, who was overseas in France during the first convention. In a 1789 letter to James Madison, Jefferson wrestled with the question of whether one generation can legislate for future generations. After conducting some calculations, he concluded that no law can be binding after 19 years. “No society can make a perpetual constitution, or even a perpetual law,” Jefferson wrote. “The earth belongs to the living and not to the dead.” It is quite remarkable that at its core the structure of American government has not changed in the two centuries since Jefferson declared that “the earth belongs to the living.” The United States is still a democratic republic with three branches of government, a bicameral legislature, and a presidential veto, but we are starting to see the walls of this old house begin to crack.
To change the basic framework of the constitution would be immensely difficult. Amendments require the approval of two-thirds of each house of Congress and three-fourths of the states. In other words, change by majority rule is hard. As Jefferson predicted, “The people cannot assemble themselves; their representation is unequal and vicious.” Without a Second Constitutional Convention, we are stuck with this form of government for the foreseeable future. The question is, is this form a good one?
An Imperfect Union
For many who have studied the Constitution and American government at length, the answer to that question is no. “I started out as what I would call a friendly or academic critic of the Constitution,” University of Texas Law School professor Sanford V. Levinson told the HPR. “But sometime in the last five or 10 years, I’ve shifted from being a relative moderate critic to really believing that the Constitution is taking us over a cliff, that it is a clear and present danger to the American public, and that it is really a disgrace that we are not having a national conversation about what a constitutional convention might actually do.” Levinson is one of the most prominent legal scholars to call for a Second Constitutional Convention, having first endorsed the idea in his 2006 book Our Undemocratic Constitution. Since then, the proposition of a convention has been backed by an awkward cluster of thinkers across the ideological spectrum, including Harvard Law professor Lawrence Lessig on the left and the billionaire Koch brothers on the right.
To criticize the U.S. Constitution is usually considered an offense to patriotism. The Founding Fathers have been revered into immortality, and the Declaration of Independence and the Constitution are among the most venerated texts of that era. When Supreme Court Justice Ruth Bader Ginsburg told an Egyptian reporter, “I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012,” she was unsurprisingly attacked for her comments. And yet Ginsburg’s point deserves merit. In the two centuries since the Constitution was written, there have undoubtedly been advancements in constitutional design, just as there have been in science, technology, medicine, and every other field. Empirical evidence vindicates Ginsburg’s comment—a 2012 study found that other countries have become increasingly unlikely to model their constitutions after America’s.
Intolerance of constitutional criticism often reflects a lack of understanding of what exactly the Constitution’s critics believe is wrong with the document. When thinkers like Levinson and Ginsburg find fault with the Constitution, it is not for the reasons that most Americans might expect. It is certainly alarming that the rights guaranteed by the Constitution originally excluded poor whites, women, and people of color, but these defects do not explain America’s structural breakdown today. The post-Civil War Reconstruction Amendments and the Supreme Court have expanded the rights of those whom the framers originally excluded. Instead, the greatest flaws of the Constitution lie in the form of government it created. “What is taking us over a cliff right now is not the Bill of Rights or the 14th Amendment,” Levinson said. “It’s structural provisions.” In Levinson’s view, “we could have perfect rights provisions, and we could still have a dangerously dysfunctional Congress, and we could still have a sociopath in the White House.”
Although we often think of the Constitution as embodying timeless principles, it is very much a document steeped in its time. As Levinson writes in his book Framed, the two great compromises of the Constitutional Convention were the product of arguments about political representation and slavery, and the stakes of these debates were enormous—if one side wasn’t happy, they could walk, and the tenuous Union would dissolve. Thus, the convention created a government that answered the peculiar challenges of the post-revolutionary era, but one not based on the best theories of constitutional design. Then, to add insult the injury, the framers created a highly demanding amendment process, making the Constitution particularly difficult to change.
A perfect illustration of this constitutional defect is the archaic Electoral College. According to Levinson, the electoral system was predicated on the understanding that slave states would receive a numeric boost as a result of the Three-Fifths Compromise, and was created on the assumption that American politics would have no political parties. Since 1787, slavery has been abolished and politics have come to be dominated by a two-party system, and yet the Electoral College is still the law of the land. The consequence has been the designation of just a few states as “swing states,” which dominate the campaign season and decide the election. Voters in other states are left as cogs in a machine, which may partially explain why the United States has voter turnout rates below 60 percent, lower than nearly all other developed countries. And yet this anachronistic system has concrete and enormous consequences: two of the last five presidential elections have handed the presidency to a candidate who lost the popular vote, with Trump having lost the popular vote by 3 million votes.
The structure of American government is not the only outmoded artifact in the Constitution. The Constitution’s language needs updating as well, something that a Second Constitutional Convention could accomplish. Some of the Constitution’s provisions are simply relics of a departed era. For example, under Article I, Section 8, Clause 5, Congress has the power “to coin Money,” but no provision of the Constitution allows the federal government to issue paper money. In the same vein, the Constitution allows for an Army and a Navy, but nowhere for an Air Force. Of course, all of this is not to say that the Supreme Court will or should find greenbacks and the Air Force unconstitutional. But, the question of how the supreme law of the land can be a Constitution with provisions we wholly ignore is not an easy one to answer, and it provides some insight into the clumsy dilemmas that arise from running a modern government based on a document written in 1787.
Even more troubling than the cases of paper money and the Air Force are what the Harvard Law professor Noah Feldman has termed “the obscure clauses,” provisions of the Constitution which have never before been litigated. Because these clauses have barely been discussed since ratification, the framers’ language is so far removed from our time that it renders any original intent of these clauses nearly meaningless. One example is Article I, Section 9, Clause 8, known as the Emoluments Clause, which forbids any “Person holding any Office of Profit or Trust” in the United States from accepting “any present, Emolument, Office, or Title” from a foreign state. Recently, numerous lawsuits against Trump claim that his conflicts of interest put him at odds with the Emoluments Clause. Among other things, these lawsuits will have to contend with the Constitution’s antiquated language: does the president hold an “Office of Profit or Trust” under the United States? What exactly are emoluments, and are fair-value transactions included? A Second Constitutional Convention could modernize the Constitution’s language and clarify its principles so that semantic confusion doesn’t stand in the way of legitimate lawsuits.
Perhaps the most treacherous areas of the fabric of American government are those improbable, but highly combustible legal scenarios for which the Constitution provides no clear remedy and which, like the obscure clauses, have never before been litigated. One example of these so-called “constitutional cliffhangers,” as the University of Michigan law professor Brian C. Kalt dubbed them in his 2012 book of the same name, is the criminal prosecution of a sitting president. On the one hand, the president’s unique status as the bearer of all federal executive power makes it difficult to see how he could be criminally prosecuted by the very executive branch he leads. On the other hand, the principle of the rule of law makes one uncomfortable with the idea of placing the president beyond the reach of criminal statutes. Another cliffhanger Kalt presents is the question of whether the president, upon whom the Constitution bestows the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment,” can pardon himself. These are questions that the framers and earliest American statesmen either never anticipated or whose answers they never agreed upon, and the actualization of any one of these scenarios would force the Supreme Court to make a highly interpretive and consequential decision. That a special counsel is actively investigating Trump’s campaign, and that this is not the first time a president is being investigated, shows that Kalt’s constitutional cliffhangers are not as absurd as one might hope. A Second Constitutional Convention could remove the metaphorical grenade before it explodes by settling questions like presidential immunity and the self-pardon before the pertinent legal arguments become opportunistically partisan and politically fraught.
An Unconventional Plan
If a Second Constitutional Convention has any chance of coming to fruition, it must be politically viable and be able to avoid the partisanship and polarization that it is trying to remedy. Levinson believes that one way to maintain the political viability of a second convention is by limiting its scope. An agreement beforehand that the Convention will only discuss structural provisions will take off the table many of today’s most divisive issues, such as abortion and gun control. Another of Levinson’s proposals is that the convention’s revisions, if adopted, will have a delayed implementation, perhaps for 10 or more years, situating the country behind a kind of Rawlsian veil of ignorance. He hopes that a delayed implementation will allow delegates to decide matters of government structure without any ideological or partisan bias.
One of the more controversial provisions of Levinson’s proposal is who will make up the delegations. “My proposal is that the delegates be chosen basically at random,” he said. Levinson would call on a polling organization such as Gallup to choose around 800 delegates that are representative of the American population. The only limitation to be a delegate would be age, and the delegates would receive a generous salary, allowing them to travel around the nation and the world to educate themselves about constitutional design. Levinson believes that ordinary people, as opposed to politicians and scholars, are best situated to decide the form of government. “Constitutional design is not rocket science,” he said. “It is basically the requirement to make choices around certain values.”
Levinson acknowledges that “the whole thing is a sort of quixotic fantasy.” But, as Congress continues to do less and less, the political parties become more adversarial, and government as a whole breaks down, a Second Constitutional Convention doesn’t seem like such a bad idea. The only question is whether the United States will continue to stumble into collapse, or a crisis will provoke a bold reexamination of our constitutional design.
This article was first published on havardpolitics.com on 20 July 2017