Dear America, Avoid a Second Convention

Karl Muth explores calls for a Second Constitutional Convention of the United States.

America is not in a Constitutional crisis. However, the phrase “Constitutional crisis” has been used in mainstream media in everything from the Clinton impeachment hearings to the so-called gun control debate (I prefer “arms rights debate”) to the question of term limits for elected officials. The term is overused. None of these events has caused a true Constitutional crisis. The document and its major sentiments have never actually been at risk.

However, admittedly, the endurance of a document does not, alone, guarantee its future success.

Arguably the first modern Occidental constitution was the edict of Britannia, which was not a constitution in the modern sense (yet remains somewhat ironic, as England today has no written constitution). The edict of Britannia was actually a series of at least seventeen documents (nineteen if the two speeches given by Claudius, then as pontifex maximus, are incorporated). Claudius correctly identified that Roman Britain would almost certainly operate as a mercantile state with slightly different rights and rules than Rome itself and that some degree of governmental autonomy would lubricate the relationship between this distant area and Rome (this was clearer in AD 43 than it had been in 58 BC when Julius Caesar first drew the battle plans for the British Campaigns; Claudius did not want friction in Britain to create a situation of violence that would require a permanent Roman military police operation to maintain order in an already-expensive remote district).

So influential was the system established for ruling Roman Britain that it was explicitly mentioned multiple times during the debates that established the rules for Somalia as an Italian colony and the rules for Hong Kong as a British colony nearly 1,900 years later.

Constitutions often evolve in this way: A recognition that new rules are needed is somehow codified. This can happen gradually (Hong Kong, which took a legislative approach and slowly integrated rules from other port cities, including several Dutch concepts of mercantile and maritime law) or can happen instantly (Roman Britain, where the need for new rules in an Iron Age state besieged by barbarians required an instant set of firm but flexible rules for local governors).

In this way, the American constitution is highly unusual. It draws very little from its colonial provenance. In fact, many of its provisions, such as the Third Amendment (which forbids the quartering of troops in private homes), are direct codifications of objections to the behaviour of the occupying British colonial forces of the Eighteenth Century. In this way, it is purposely (and purposefully) contrary to the legal traditions that preceded it.

And perhaps it is time for contrarianism of a new era. There are calls from both the right and the left ends of the political spectrum for a Second Constitutional Convention of the United States.

Campaign finance issues, interestingly, seem to be the primary driver of this enthusiasm for a new Constitutional Convention. However, to call a Constitutional Convention (referred to sometimes by Constitutional scholars as an “Article V event” or a “38 event” referring to the 38 or 50 states needed to ratify changes made at such a Convention), it is unclear what actually would need to happen. Most Constitutional law scholars agree that the Framers did not leave particularly clear instructions as to how subsequent Constitutional Conventions might be convened, though states have tried in the past to trigger a convention.

New Hampshire, Alabama, North Dakota, Texas, and Louisiana have all had either referenda or legislation designed to trigger a new Constitutional Convention, but these are likely singular events, as the scope and purpose of the conventions proposed vary widely. The only serious attempt to trigger a convention in the modern era has been the push to hold a narrow convention focused on the addition of a Balanced Budget Amendment to the Constitution (ratified by 33 of the 34 states needed). Prior to this, the most serious attempt to trigger a convention was in the final ninety days of American military involvement in Vietnam in 1975, when House Concurrent Resolution No. 28 was proposed by Rep. Pettis of California (the convention would likely have centred on a series of Constitutional prohibitions including, possibly, a Constitutional limitation on the ability of Congress to raise armies through conscription).

Scholars, authors, and politicians from across the political spectrum have proposed that a new Constitutional Convention is needed in this decade. They include well-known names from Lawrence Lessig from William Safire. Reasons for invoking Article V range from introducing a Balanced Budget Amendment to eliminating the Electoral College (which many scholars agree is outdated and which many believe disempowers voters in states where they are of a minority party) to clarifying the meaning of the Second Amendment to clarifying the appropriate use of Executive Orders.

But the practical aspects of a new Constitutional Convention are nontrivial.

No Constitutional Convention has been convened since 1787 and any serious attempt to convene a new Convention with any substantial scope would likely be mired in litigation for years. It is not clear how many people calling for a Second Constitutional Convention actually want to replace the Constitution of the United States with a new document, versus substantially changing it through amendments (new amendments would still require the approval of two-thirds of both houses of Congress and approval of three-quarters of the states several – the only Amendment not to the U.S. Constitution that was not approved in this manner was the Twenty First Amendment, which destroyed the retrospectively-unpopular Eighteenth Amendment).

Constitutional scholars like Lessig (Harvard) and Levinson (UT) have pointed out that Article V had been devised to allow a way around a deadlocked Congress. Other scholars, including the late Berman (Harvard), pointed to Americans’ memory of the Long Parliament in England and the need to create an escape valve of sorts if the legislature became so uncooperative or unproductive that the business of the nation could not be effectively conducted. Many feel the latest American Congressional proceedings (specifically the 112th Congress and 113th Congress) have been so unproductive that an Article V event is justified to make fundamental changes in an environment where Congress seems so hopelessly deadlocked that even basic legislative business (such as the approval of appointees for administrative positions) cannot move forward. The disapproval of Congress’s lack of productivity is not isolated in academia, the 113th Congress had a disapproval rating of 83% and an approval rating of only 13% (in October of 2013, the approval rating slipped to 6.5% according to some polls, the lowest approval rating for Congress ever recorded).

While a Congress that requires months of debate to authorise paycheques to its military (the Pay Our Military Act, H.R. 3210, barely passed in time to provide pay to the U.S. military during the government shutdown of 2013) is almost certainly unacceptable to voters, it is unclear whether an uncooperative Congress is enough to motivate an Article V event. From a policy perspective, the uncertainty created by a new Constitutional Convention would be potentially-damaging legislatively and economically. From a global perspective, any major revision of the U.S. Constitution might be seen as hypocritical, particularly after sixty years of U.S. foreign policy focused on encouraging developing countries to adopt constitutions loosely modelled on the U.S. Constitution.

The debate will no doubt continue, but I suggest there may be other policy alternatives to a wholesale Constitutional Convention.

Specifically, a multistate referendum system would allow state legislatures to adopt uniform amendment proposals (as was done in the years leading up to the proposal of the Sixteenth Amendment). This would also eliminate plurality confusion and help the public (and public policy advisors) distinguish between enthusiasm for a wholesale convention versus excitement about a particular revision (or set of revisions) that could be implemented through an amendment. In the post-Pollock period when the Sixteenth Amendment was proposed, state legislatures (particularly in the south) were eager to see such an amendment implemented, but timid to propose an amendment that might fail. Through a referendum system, it was established that sufficient support for the Sixteenth Amendment existed (and perhaps four or five states’ worth of excess support, depending upon whose historical account one believes) and the Sixteenth Amendment was famously adopted on “the coldest morning” of 1913.