Column: The U.S. Constitution is flawed. But a constitutional convention to fix it is downright scary
The U.S. Constitution is flawed and ought to be changed.
Here’s where I’d start:
◆ The undemocratic provision giving each state two senators, so that tiny Wyoming has the same representation as California, should be revised.
◆ The 2nd Amendment, which has become an out-and-out public health threat, should be amended to ensure it doesn’t give every fool and lunatic the right to keep and carry a gun.
◆ The electoral college, which allows presidents to take office who did not win the popular vote, should be abolished.
But even though I strongly favor these reforms and others, I am even more strongly opposed to the convening of a constitutional convention. At least right now.
Opinion Columnist
Nicholas Goldberg
Nicholas Goldberg served 11 years as editor of the editorial page and is a former editor of the Op-Ed page and Sunday Opinion section.
A convention in the current political climate could devolve into a potentially uncontrollable free-for-all that could lead to all sorts of dangerous unintended consequences.
Although no such convention has been held in the U.S. since 1787, there’s a movement underway to establish one now, and some analysts think it’s getting frighteningly close to happening.
Under Article V of our existing Constitution, states are allowed to petition Congress for a convention to propose constitutional changes and emendations. By one count, 19 states have already made such a request, and more than a dozen are moving in that direction. Those numbers are, for a variety of reasons, murky, but if two-thirds of the 50 states — 34 of them, that is — petition for a convention, Congress would have to call one.
What would a convention look like, who would be appointed to it, how many votes would each state get, what would be the rules of engagement? The Constitution doesn’t say. Presumably its members would be appointed by state legislatures and would negotiate until they agreed upon a package of proposed constitutional changes. To be adopted, the proposals would require the approval of three-quarters of the states.
Bush was bad. But those were simpler days. We’ve seen something much worse since then.
One reason we know so little about what a convention would look like is that this is not the way the Constitution has ever been amended in the past. It is an untested alternative approach.
So why oppose it? To be honest, my position is less about principle than pragmatic politics. In our current political climate, I fear it could go entirely off the rails.
Although Democrats and Republicans have changes they’d like to see made to the Constitution, it is the GOP that is most feverishly pushing for a convention at the moment. Republicans currently control most of the state legislative seats in the country, and they could have disproportionate power in this process compared with Democrats.
It’s even conceivable (though by no means certain) that at a constitutional convention each state would have a single vote, meaning that liberal California, with 40 million people, would have no more say than Republican-dominated Wyoming, with 581,000 people.
Until 1970, tuition was free at the University of California. That’s not coming back, but we mustn’t lose sight of accessibility and affordability.
Rick Santorum, the former Republican senator from Pennsylvania, is a key backer of the convention, which he says is justified by “the current state of the federal government and the inexorable path toward fiscal disaster and socialist tyranny.”
Other proponents, according to a recent New York Times story, include members of the tea party, the Federalist Society and lots of Trump supporters.
Though many conservatives have called for a convention with a limited agenda (fiscal restraint and term limits for federal officials are one proposal, for example), legal scholars worry about a “runaway” convention in which delegates toss aside their official mandate and push for much broader changes. Nothing in the Constitution would stop that.
That’s a particularly scary idea at a moment of intense political polarization and animosity, when common ground is elusive, at best, and when disruption, populism and demagoguery are in vogue.
If we can’t agree about wildfires, public health or vanquishing a foreign enemy, maybe ‘non-partisanship’ is dead.
Imagine the excitement of election deniers, climate deniers, immigration opponents, abortion opponents and pro-gun groups at a chance to rewrite the Constitution. Imagine the feverish maneuverings of big corporations and other special interest groups just outside the room.
How bad could it get? Theoretically, very bad. I’m just making this up, but the convention could propose strengthening the 2nd Amendment, rejecting any restrictions at all on gun ownership. Or it could call for weakening the separation of church and state by making reference in the Constitution to the nation’s Christian heritage. Or imposing a national abortion ban. Or removing the 1st Amendment’s protections for the free press.
Oh, that would never happen, you say? I’m dealing in worst-case fantasies? Maybe so.
Some very smart legal scholars think that I’m being histrionic. Sanford Levinson, at the University of Texas at Austin, is no conservative, but he supports a convention because he believes our current foundational document is “radically defective” and that structural change is necessary if government is to work effectively. He believes that extreme proposals like the ones above would never come to pass because they wouldn’t win the support of three-quarters of the states.
Progressive public relations guru David Fenton says organizations fighting global warming are ignoring well-known rules about how to sway public opinion.
But I’m too scared to take that risk at such a volatile, unhinged moment in U.S. history.
Even conservatives have opposed a constitutional convention in the past. Chief Justice Warren Burger told Phyllis Schlafly in 1988: “There is no way to effectively limit or muzzle the actions of a constitutional convention.” Justice Antonin Scalia told an interviewer: “I certainly would not want a constitutional convention. I mean, whoa! Who knows what would come out of it?”
Yes, we need serious, mature discussion about the Constitution’s flaws and how to fix them. The traditional amendment process has become awfully difficult to use, which is why the Constitution has been amended only once in the last 50 years.
But to open the entire document to radical change at this unstable moment in history seems like a risky and potentially dangerous way to make things better.
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