Constitutional convention
Daniel Lazare
03.04.25
Summary:
Liberals are worried about a rightwing push for a constitutional convention that could potentially change American political structure from top to bottom. The New York Times, the Washington Post, and other outlets are sounding the alarm. Yet such fears are not only exaggerated but misplaced since the real danger is not that the Constitution will change too much, but that it will not change at all. With the constitutional amending process all but frozen, Americans are condemned to labor under an outmoded form of government dating from the late 18th century. They are all-powerful according the Preamble, which says that “we the people” can “ordain and establish” new constitutions whenever they think it will enable them to form a more perfect union, establish justice, and so on. Yet the amending clause set forth in Article V provides tiny minorities with such an unqualified veto that changing so much as a comma is all but impossible. The House is gerrymandered while a senate based on equal state representation allows the majority that lives in just ten states to be outvoted four to one by the minority in the other 40. The Electoral College triples the clout of voters in lily-white Wyoming compared with a “minority-majority” giant like California. With a majority of justices nominated by unelected presidents or confirmed by senators representing a minority of the population, the Supreme Court is a minoritarian institution bent on stripping Americans of their most fundamental rights. Yet there is nothing the people can do.
Article:
“Democrats Aim to Foil a Constitutional Rewrite.” So said a New York Times headline in mid-December about a Republican push for a constitutional convention. The article was filled with facts and quotes about an impending Trump-fueled constitutional makeover that sounded so scary that they were all but guaranteed to keep liberals awake at night. For example:
- “[T]he Constitution allows Congress to convene a rewrite session if two-thirds of state legislatures have called for one.”
- “More than 34 states appear to have standing requests to change the Constitution.”
- A “runaway convention” is a distinct possibility.
- This could mean “a free-for-all in which a multitude of other amendments are considered, including some that could restrict abortion access or civil rights.”
- “It’s all uncharted territory” says one top legal scholar who adds that he has no idea what to do.[i]
The nonpartisan watchdog Common Cause is also sounding the alarm: “The unknowns surrounding a constitutional convention pose an unacceptable risk, particularly in the current polarized political climate.”[ii] So is Washington Monthly, which says an “absence of any agreed-upon rules” would make a constitutional convention especially dangerous under current political conditions.[iii] Ditto the Washington Post, which warns that ultra-rightists are using the process to ram through “white Christian” values.[iv] “These clowns will try anything to enshrine a new order,” commented one Times reader. “If the conservatives do this,” offered another, “it is a hot civil war. The west coast will leave the union.”
If things are bad now, then brace yourself because they may soon get a good deal worse. Or so we’re told. But the reality about a constitutional convention is that the threat is overblown. A “con-con” will probably never occur, but, even if it does, the chances of it leading to actual constitutional change are nil. It’s a spectacle designed to titillate the conservative base while allowing Democrats to grandstand as protectors of the country’s most cherished institutions. Otherwise, it’s meaningless. Americans have a lot of things to worry about, but a constitutional convention is not one of them.
Indeed, what Americans really have to worry about is not sudden constitutional change, but the prospect that meaningful structural reform will never occur at all.
This is the real problem. The US Constitution is now in its mid-third century. After a generation of gridlock, two stolen elections, one attempted coup, and now a full-blown authoritarian in the Oval Office, it should be obvious that the ancient constitutional machinery is not working the way it should. Yet politicians are at a loss. The logical thing when a constitutional system breaks down to this degree is to do what you’d do with an old jalopy stalled by the side of the road, i.e. call a tow truck and take it in for repairs. But it’s a non-starter for the simple reason that constitutional change is all but impossible. So reformers are stuck. They need to fix the system but they can’t. Yet they make a big fuss when conservatives offer to fix it instead.
What to do? Although Americans are loath to speak ill the Constitution, the problem is a 140-word run-on sentence known as Article V. This is the document’s amending clause, and what it adds up to is something known as the two-thirds, three-fourths rule. If “we the people” want to change so much as a comma in America’s holy of holies, the rule says that two-thirds of both houses of Congress must agree and that three-fourths of the states must then give their assent. The consequences are both impractical and undemocratic. The first means that 34 senators representing as little as 7.4 percent of the population can veto any effort at constitutional reform. The second empowers an even smaller minority to do likewise In 1790, the three-fourths portion meant that four out of 13 states representing nine percent of the population could block any change sought by the other 91. Today, it means that 13 out of 50 states representing just 4.4 percent can block any reform sought by the other 95.6. Although one might think that an eighteenth-century constitution would grow more flexible in response to changing circumstances, the US Constitution is less. The older it gets, the more change-averse it becomes.
The result is the odd spectacle of a country that is simultaneously hyper-active and frozen in time. Although a constitutional convention bills itself as a way out of the impasse, it is nothing of the sort. No one knows whether the states can limit the scope of such a convention to, say, a balanced-budget amendment or whether they can rescind their calls for a con-con once they’ve been issued. (Ten states have done so since 2016.) But even if Congress authorizes such a body upon the application of two-thirds of the states, no one knows whether delegates will vote by population, by state, or by some combination of the two.[v] But there is zero ambiguity as to what happens next. Article V makes clear that the convention must then submit its recommendations to the states, three-fourths of which must approve before any of them go into effect. So we’re back to where we started with tiny minorities in a position to just say no indefinitely.
Indeed, liberals might be grateful for minority rule for once because it means they will have no trouble stopping any such convention in its tracks. So this time it will be conservatives who suffer the consequences. But this raises an important question: do they even care? Given that the Constitution is already doing a fine job pushing politics to the right, why bother pushing for something new? Liberals used to talk about the Constitution as a charter of liberties, but those days are long gone. Thomas Jefferson explained why in a well-known letter to a fellow Virginian named Samuel Kercheval in 1816:
“I am certainly not an advocate for frequent and untried changes in laws and constitutions…. But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
Jefferson is an ambiguous figure, but in this case he hit the nail on the head. An unchangeable constitution is paralyzing. Once a full-grown adult has squeezed himself into that minuscule coat, he can’t move or function. The result is a form of slow strangulation that deprives democracy of the oxygen it needs to develop and grow.
This is why the conservatives have no need for a constitutional convention since the status quo is already working in their favor. The more the machinery breaks down, the more they benefit. Although the inefficiency of America’s pre-modern checks and balances has long been evident, the process entered a new stage when Trump won the Electoral College in 2016 but lost the popular vote. Democrats, of course, were stunned. But while they conceivably could have responded by changing the Constitution so as to remove an increasingly dangerous provision, the unlikelihood of any such effort made them settle for what they thought was second best. This was Russiagate, a conspiracy theory about Kremlin interference that succeeded in tying up Trump for much of his first term before collapsing under its own weight. A series of rapid-fire strikes and counter-strikes then ensued. Trump responded to what he saw as an attempt to drive him out of office with an attempted coup. Dems shot back with a “lawfare” campaign aimed at putting him behind bars. A series of thoroughly underwhelming prosecutions followed charging Trump with fraud because he had hyped the dimensions of an apartment he was trying to sell or with violating federal election law because he had paid hush money to a porn star. But the only effect was to make Trump look like a victim of a weaponized criminal-justice system. When a plurality voted him in despite his election-law conviction, he paid Democrats back by pardoning some 1,500 “J6” defendants – thereby legalizing the January 6 coup – and issuing a blitzkrieg of executive orders eliminating immigrant rights, abolishing birthright citizenship, pulling the plug on climate measures, withdrawing from the World Health Organization, and wiping out DEI.
Did Trump win – or did the constitutional structure merely collapse? The answer, presumably, is both. Given the snake pit on Capitol Hill, is it any wonder that voters are coming to see democracy as hopeless and strong-man rule as the only escape? Since a constitutional convention no longer serves any purpose that Republicans can see, it’s destined to go the way of term limits and the line-item veto, rightwing fads that have long since faded from view.
The consequences are not pretty. The Constitution is frozen and a constitutional convention offers no way out as democracy continues its downhill plunge. Given the utter hopelessness of the situation, Americans seemingly have no alternative but to hold hands and sing “Nearer My God to Thee” as the Titanic sinks beneath the waves.
But just because there is no solution within the system doesn’t mean there is no solution outside it. Nearly 30 years ago, a Yale law professor named Akhil Reed Amar explored one such outside-the-box option in a remarkable law-review article that still generates internet buzz. Entitled “Constitutional Amendment Outside Article V,” it argued that the Constitution contains not one but two amending clauses, the one that everyone knows about in Article V plus a second implicit in the Preamble. This is the famous sentence that begins with “we the people” and ends with “do ordain and establish this Constitution for the United States of America.” While the language seems straightforward enough, few realize that it is actually an act of political legerdemain that allowed the founders to create a new form of government without acknowledging that they were overthrowing an old one. This was the ill-fated Articles of Confederation, ratified just six years earlier and still the law of the land. Where the Articles stipulated that constitutional change could only go into effect when approved by all 13 states, the new document’s Article VII said it would go into effect when approved by just nine. Existing law said one thing, proposed new law quite another.
Does this mean that the founders broke the law? Yes – although, echoing Thomas Hobbes, one could argue that “we the people” are incapable of any such violation since, as the sovereign power, they make law and are not subject to it. In any event, Reed’s argument is that today’s Americans have a similar sovereign right. As he put it, “We the People of the United States – more specifically, a majority of voters – retain an unenumerated, constitutional right to alter our Government and revise our Constitution in a way not explicitly set out in Article V.”[vi] Since the two-thirds, three-fourths rule is putting self-government in jeopardy by ruling out meaningful structural reform, Americans are free to overthrow it and create a new amending process based on simple majority rule. The two-thirds, three-fourths rule may say no, but “we the people” say yes, and according to Reed’s thesis, their sovereignty prevails.
This means that Americans are free to elect a democratic assembly with full power to modify the existing constitution or create a new one in its place – not under Article V but over and above it. If the majority decides that the Second Amendment no longer serves a useful purpose, then the assembly can vote it down regardless of what Congress, the states, or the Supreme Court may say. The same goes for the Electoral College, a lifetime Supreme Court, or a Senate based on equal state representation. If the democratic majority turns thumbs down, out they go too.
This is not a constitutional convention, but a constituent assembly, which is to say a gathering not under the Constitution, but an assembly of those constituent elements that gave rise to it in the first place. It is the same sort of body that met in Paris in 1789, one that turned into a runaway convention to end all runaway conventions by abolishing feudalism at a stroke, replacing provinces with uniform départements, and resolving that Frenchmen were no longer subjects of the crown, but citoyens of a democratic republic. Such things were all thoroughly unthinkable until le peuple said otherwise, at which point no one could think about anything else.
Needless to say, something like that can never, ever happen in the United States. America is a country based on individualism, limited government, and the rule of law, which is to say law that is permanent and unchanging, over rather than under politics. The idea of tossing all that out in the course of some clean democratic sweep is, well, un-American. Yet the US political structure is more and more undemocratic. The Senate allows the 54 percent of the country that lives in just 10 mega-states to be outvoted four-to-one by the minority in the other 40, a situation destined to grow ever more horrendous since population projections by the University of Virginia indicate that, by the year 2050, a majority of the population will be concentrated in just nine.[vii] Meanwhile, the Electoral College more than triples the voting power of lily-white enclaves such as Wyoming or Vermont, the Supreme Court is taking back rights that Americans once thought were secure, while a gerrymandered House makes a mockery of one person-one vote. What can the answer to an increasingly undemocratic system be other than democracy? And what can the answer be to an obsolete constitution other than top-to-bottom democratic reform?
As they used to say in Paris, be practical – demand the impossible. A constituent assembly is out of the question until it’s not. As the political crisis mounts, Americans will find themselves wrestling with options that were once beyond the pale but are no longer. Politics are growing more turbulent thanks to the democratic breakdown and, ironically, more open as well.
Bio:
Daniel Lazare is a journalist based in Manhattan. He is the author of The Frozen Republic: How the Constitution is Paralyzing Democracy (Harcourt Brace, 1996) and two other books dealing with US constitutionalism. He writes for the Democratic Constitution Blog, Permanent-Revolution.org, and other websites.
[i] Heather Knight and Kate Selig, “Democrats Aim to Foil a Constitutional Rewrite,” New York Times, Dec. 17, 2024, https://www.nytimes.com/2024/12/16/us/a-constitutional-convention-some-democrats-fear-its-coming.html.
[ii] “U.S. Constitution Threatened as Article V Convention Movement Nears Success,” Common Cause, Mar. 21, 2018, https://www.commoncause.org/resources/u-s-constitution-threatened-as-article-v-convention-movement-nears-success/.
[iii] Peter M. Shane, “Amending the Constitutional Amending Process,” Washington Monthly, Apr. 3, 2023, https://washingtonmonthly.com/2023/04/03/amend-the-constitutional-amendment-process/.
[iv] Jennifer Rubin, “A constitutional convention would be a nightmare,” Washington Post, Sept. 7, 2022, https://www.washingtonpost.com/opinions/2022/09/07/constitutional-convention/.
[v] Article V is fraught with such difficulties. For the definitive article on its many problems, see David E. Pozen and Thomas P. Schmidt, “The Puzzles and Possibilities of Article V,” Columbia Law Review 121, no. 8 (December 2021).
[vi] Akhil Reed Amar, “The Consent of the Governed: Constitutional Amendment Outside Article V,” Columbia Law Review 94 (1994), 458-59, https://openyls.law.yale.edu/bitstream/handle/20.500.13051/5403/The_Consent_of_the_Governed____Constitutional_Amendment_Outside_Article_V.pdf?sequence=2&isAllowed=y.
[vii] Demographics Research Group, Weldon Cooper Center for Public Service, University of Virginia, https://www.coopercenter.org/national-population-projections.