There has been a great deal of talk among politicians and the general public about what is wrong with the U.S. Constitution and why it should undergo major changes. From direct election of the presidency to an equal rights amendment to a balanced budget, there is much in the language of the Constitution and the amendments that have been added that either need clarification or have not kept pace modern times and modern governing challenges. But because changing the Constitution requires an arduous process — a vote of two thirds of both houses of Congress followed by approval from three fourths of state legislatures — many of the reforms raised in the past have fallen by the legislative wayside. There is regular talk of Constitutional reform but little actual Constitutional reform.
There is, however, another way to bring change to the Constitution that is part of the document but has never been used. Article Five states that amendments to the Constitution can be proposed if “the legislatures of two thirds of the several states shall call a Convention.” On the surface, calling a convention by two thirds of the state legislatures would seem to be a much more efficient and less time-consuming manner of bringing change to the Constitution. Yet as with a good portion of the language in the Constitution, the exact process of how a Convention would work is unclear if not absent. Questions regarding the process would likely be raised such as how would each state be represented in the Convention, who would control the process of setting the agenda, what would be the procedure for counting the votes, and what would happen if the voters in each state reject the changes as is required by Article Five?
Why the issue of a calling a Constitutional Convention is a matter pertinent at this time in our political history is that supporters of President Trump both in government and among many conservative groups have expressed their view that changes in our country and to our governing process cannot just be legislated or achieved through presidential executive order but instead must be incorporated within the body of a “new” constitutional document. The position of this segment of Americans is that government has gotten too big, too costly, too controlling and too centralized that drastic action must be taken, and the only way to achieve these goals is through a massive overhaul of the Constitution.
Not surprisingly, there are those who fear what a “new” Constitution would look like once a Convention assembled and acted upon changes to the document. Opponents to the Convention believe that controversial changes to the Constitution such as a federal ban on abortion, a rejection of the 14th Amendment’s birthright citizenship for the children of undocumented migrants, an end to the separation of church and state, and the elimination or major revision of the 16th Amendment on the income tax would be critical agenda issues. In the view of this segment of Americans, such proposed changes to the Constitution would do away with long-standing legislative and judicial precedents, personal rights and guarantees, and governing norms that are certain to create economic, social and political havoc and become a runaway process of change with few if any limits. It is important to note, however, that liberal-leaning legislatures would also see the Convention as an opportunity to add a stiff gun control amendment, provide for term limits for federal judges and bring an end to the partisan practice of gerrymandering that ensures control of state legislatures by the dominant political party.
What makes the prospect of a Constitutional Convention more than just political talk is that, at the present time, of the 50 state legislatures that would vote on a Convention, 28 are under Republican control with a number of others nearing majority control (Pennsylvania and Minnesota for example). The 28 state legislatures make up 59% of the goal for reaching the two-thirds vote. These 28 state legislatures are staunchly conservative and support President Trump’s call for major government overhaul of our government. There is no certainty on how these 28 state legislatures would vote on calling a Convention, but there is a thin margin of possibility that could bring about a call for a Convention as stipulated in Article Five of the Constitution.
There is no doubt that Americans view the Constitution with pride and respect. When citizens walk by the Constitution in the National Archives, a palpable hush fills the room as the realization that this document is the foundation of our democracy and the source of representative-based policymaking. But to many Americans the Constitution is an old document, out of step with the current political climate and in need of review and perhaps reform. It is unclear where the push for a Constitutional Convention will go in the coming months and years, and the prospect of what could become radical change and unwarranted reform may make Americans think again about the need for a “new” Constitution. But what is certain is that there is general agreement among Americans that all is not well in the way this country is run. Passing effective laws, working in a non-partisan manner to solve national problems, and reaching a consensus on American values, beliefs, rights and governing principles is a far better way to bring about change and reform than calling a Constitutional Convention. But it is important to remember that there is an alternative pathway to bring about a “new” Constitution and a pathway that could become a reality in our nation’s future.