The Case for a Convention

Summer, 1787. Men from across the states gathered in Philadelphia, crowding into the Pennsylvania State House.

They had been called together in the hopes that they could remedy the national crises of civil unrest, mounting debt, and disunity among states. These had arisen under the Articles of Confederation, yet the government under that text had been unable to adequately respond to any one.

Those men, the Founders, planned to amend the Articles, addressing the nation’s issues thus. However, they soon realized the Articles, by their very nature, were counterproductive to the interests of the country. So, they abandoned the Articles and drafted a new constitution.

They recognized that a system which could only change through piecemeal adjustments is unable to address colossal issues. Such was the case under the Articles, as they were to “be inviolably observed…” against “any alteration…unless such alteration be agreed to in a Congress…and be afterwards confirmed by the legislature of every State” [1]. To pass even a single amendment would have required unanimity. Meeting this high standard would have been exceedingly rare, making whatever changes the amendment process could achieve long-drawn-out. Thus, rather than wrestle with the Articles’ system, trying to force it against its own nature, the Founders resolved to replace it and start anew.

It is time to follow in their footsteps—it is time for a constitutional convention. Consider that we are faced with a similar set of crises as our countrymen were: Congress cannot act upon pressing issues; the Executive’s continual growth has upset the balance of power, while the Legislature does little to check it; gerrymandering plagues our electoral processes, which the public is dissatisfied with anyway.

Facing these crises, we could attempt to pass amendments, write new laws, rationalize straying from the Constitution with legal theories. That is, we could attempt to co-opt our modern political disarray into something that bears the name and face of “constitutionality.” Yet the thought of even a single amendment achieving passage, much less ratification, is almost comical; Congress can hardly pass laws when one Party holds control of both chambers and the Presidency, much less an amendment! This approach means living in an open contradiction by ruling with what is essentially unwritten law, while still officially recognizing the Constitution [1]. Such de facto law stands on the shakiest of grounds, subject to challenge at any time by anyone with an agenda.

Some might argue that a convention would encounter the same issues as Congress does today: inefficiency through polarization. However, the convention model has means of getting around these concerns. First, scholars who, unlike members of Congress, have no need to generate publicity with partisan drama, will lead it. Further, the American people will be represented at the convention and involved in the process of drafting a new constitution (explained more in-depth later on in this essay), which will give the convention a popular mandate on top of its scholarly mandate. With both, states will have to respect the convention’s proposal, lest their populations reject the State government’s legitimacy. With these considerations, the fear over the convention running into the same gridlock as Congress is roundly dispelled.

The Constitution was intended to be flexible, not malleable. Nevertheless, Congress acts more like the British Parliament than intended, passing whatever laws it deems fit—insofar as parties and special interests will allow. The difference being that parliamentarians have parliamentary sovereignty, which allows them to pass whatever laws they like. We may have the “Necessary and Proper” Clause, but even that requires respect to constitutionality. Legislators, though, act as if they have parliamentary sovereignty, only later devising post hoc justifications for borderline or outright unconstitutional laws. At the same time, the actual text of the Constitution has not changed since 1992. The state of governance in this country is evidently an open contradiction.

Taking this into consideration, it becomes clear why the reasonable solution is to do as the Founders—to recognize that our current system is no longer working and devise a new system that will work for us.

A convention’s goal would not be to scrap the Constitution, as some might fear. Instead, it would consider which elements to carry over from our current text, which to modify, which to discard. By this, we decide what our fundamental values are. Though this might seem similar to the amendment process itself, there is one distinguishing factor which shows the difference and weighs toward the convention route: amendments to the Constitution still work within the framework of the Constitution.

To illustrate: when one writes a paper, there are flaws in their logic or structure. First, they make simple revisions to make the paper flow better. Still, the overall framework remains the same. The ideas might be good, but they are in the wrong places. Revising them does not change that. In order to improve the work, they have to rewrite it. Many arguments remain the same, but some are added, some removed, and the whole structure is rearranged. This is what writing a new constitution is like. The reason it must be a new one, not just a revision, is because the current one, much like the first draft of the paper, has certain principles that give it its structure. Trying to change it fundamentally while still constrained by that structure makes no sense.

Some questions we might want to ask about our fundamental values: Perhaps most significant of all, “do we even want to have a written constitution any longer or something more akin to the United Kingdom’s unwritten constitution? [2] Following, “do we want a more powerful Executive Branch? Should we retain the Electoral College or leave presidential elections to a popular vote? Are our territories to be granted statehood or independence?”

As with the transition from the Articles to the Constitution, we would undoubtedly maintain a republican form of government, though the balance of power within the branches may shift. For example, the President may obtain the power to initiate wars, with Congress having the power to stop them later on. Conversely, perhaps the President will be expressly prevented from engaging the military in offense without congressional approval.

Our civil liberties, too, might change but would retain their fundamental cores. The new government would be different, but not alien. At best, questions like those listed above, under the current system, the Supreme Court might settle. Nevertheless, the Court only reviews some odd hundred out of the thousands of certiorari petitions it receives annually. There is simply not enough time for one court to arbitrate every issue that comes its way, leaving many unresolved for decades.

Further, even when the Court does review a case, it is often forced into making uncomfortable decisions. The Court was meant to interpret the law, not legislate it. It tries to avoid hearing cases that might force it to. Where this leaves the Court is between a rock and a hard place—either it can refuse to hear a case, letting the issue at its center continue to trouble the country, or it can hear it and have to resolve it, potentially with a near-legislative ruling.

The recent Chiafalo and Baca decisions regarding faithless electors [3] have made a plain show of this judicial misapplication*. In order to have each State represented on equal terms, respective legislatures will select two scholars, most likely, but not necessarily, professors, neither of whom will be officeholders. These scholars will make up 100 seats at the convention.

The remaining seats will be filled by civilian-advocates—those from civilian, not corporate, interest groups, or qualified private citizens. Individuals wishing to serve as civilian advocates will submit applications to the standing convention which will have set qualifications for application. Convention staff will then sort through applications to find those that qualify. That done, qualifying applications will be passed to the scholar-delegates from the applicants’ State (i.e. Colorado’s applicants are reviewed by Colorado’s two delegates). The delegates will select those they believe best represent the interests of their people, choosing as many civilian-advocates for their State as it is granted in the House of Representatives. State legislatures may deny the selection of a civilian delegate by a sufficient vote. These 535 delegates will then draft up a new constitution.

This model is a hybrid between that used in 1787 and that proposed by scholar Michael Paulsen [4]. The former favored one vote per State. The latter suggested using population alone. This mixes the two, ensuring each State, as well as its population, is given proper representation.

In order for the new text to achieve ratification by the convention, one of the following conditions must be met:

– At least 3/4 of the states in favor (requiring both delegates from a State to vote in favor), with at least 1/2 of the civilian delegates also in favor

– 2/3 of the states, with 2/3 of the civilian delegates

– 1/2 of the states, with 3/4 of the civilian delegates

Once ratified by the convention, the new constitution will need to be adopted by 9/13 of the states—a provision nullifying the Constitution would have to be included in the new text.

[Read the rest of this article in the attached document]