Second Constitutional Convention of the United States

The Second Constitutional Convention of the United States is a proposal made by some scholars and activists^[1] from both left and right^[2] for a substantive effort to reform politics in the United States by means of overhauling the current United States Constitution. The current Constitution in Article V describes several ways in which the current constitution could be altered, but that in any event, three-fourths or 38 of the 50 states would be needed to ratify any changes.^[3]

History

There have been scattered calls at the state level for a second convention throughout the nation's history. In 1943, a lawyer for Chicago-based Marshall Field's department store as well as Time Inc. wrote a book A Time for Change calling for a convention to "streamline the United States government."^[4] In the late 1960s, Senator Everett Dirksen called for a second constitutional convention by appealing to state legislatures to summon one.^[5] There have been acts by state legislatures urging Congress to press for constitutional amendments to deal with apportionment issues as well as the balanced budget amendment.^[6]

A report in the Pittsburgh Post-Gazette in 2011 described the movement for a second convention as gaining "traction" in public debate,^[1] and wrote that "concern over a seemingly dysfunctional climate in Washington and issues ranging from the national debt to the overwhelming influence of money in politics have spawned calls for fundamental change in the document that guides the nation's government."^[1] For several years, state lawmakers approved no Article V Convention calls at all, and even went so far as to adopt resolutions rescinding their prior such calls. However, in 2011, legislators in Alabama, Louisiana, and North Dakota (in two instances) approved resolutions applying for an Article V Convention. All three of these states had adopted rescissions in 1988, 1990, and 2001, respectively, but then reversed course in 2011. The very same was true in 2012 with New Hampshire lawmakers who had just adopted a resolution to rescind previous convention applications as recently as 2010.

Many states have called for an Article V Convention to discuss adding a Balanced Budget Amendment to the Federal Constitution. To summon such a convention for this amendment, 34 states need to apply. In 2013, the number of states making the application is unclear; it may be either 33 or 20,^[7] and the tally may depend on rulings about whether past state applications may or may not be rescinded. In 1983, Missouri applied;^[8] in 2013, Ohio applied.^[9] It may take years before a sufficient number of state legislatures apply; if such a convention happened, the Balanced Budget Amendment would happen if 38 states ratified the amendment.

At the congressional level, exactly one month to the date before his death in a February 14, 1975, plane crash, the late U.S. Representative Jerry L. Pettis, Republican of California, went so far as to introduce House Concurrent Resolution No. 28 which—had it been approved by both houses of Congress—would have triggered a national convention to have been assembled in Philadelphia, Pennsylvania, for the purpose of proposing amendments to the federal Constitution. Pettis' concurrent resolution would have stipulated that each state would have been entitled to send as many delegates to that convention as it had Senators and Representatives in Congress and that such delegates would be selected in the manner designated by the legislature of such state. On August 5, 1977, former U.S. Representative Norman F. Lent Republican of New York introduced House Concurrent Resolution No. 340, which was quite similar to Pettis' 1975 H.Con.Res. 28. Lent's H.Con.Res. 340 received no further consideration than to be referred to the House's Committee on the Judiciary.

A report by analyst David Gergen in CNN suggested that despite serious differences between left-leaning Occupy movements and the right-leaning Tea Party movements, there was considerable agreement on both sides that money plays "far too large a role in politics."^[10] Scholars such as Richard Labunski, Sanford Levinson, Lawrence Lessig, Glenn Reynolds,^[1] Larry Sabato,^[11] newspaper columnist William Safire,^[12] and activists such as John Booth of the Dallas movement RestoringFreedom.org have called for constitutional changes that would curb the dominant role of money in politics.^[1] Scholar Stein Ringen in his book Nation of Devils suggested that only a "total overhaul" of the constitution could fix the "years of accumulated damage and dysfunction," according to a report in the Economist in 2013.^[13] French journalist Jean-Philippe Immarigeon suggested in Harper's magazine that the "nearly 230-year-old constitution stretched past the limits of its usefulness".^[14] A report in USA Today suggested that 17 of 34 states have petitioned Congress for a convention to deal with the issue of a balanced budget amendment.^[3] A report in CNN suggested that 30 state legislatures are considering resolutions either calling for a constitutional convention or else proposing changes to the Constitution.^[15] David O. Stewart suggested that possible topics for Constitutional amendments might include the elimination of the electoral college and switching to direct election of the president, a ban on procedures in the House or Senate which require a supermajority vote as a means to prevent minorities or powerful Senators from blocking legislation, term limits for congresspersons, and a balanced budget amendment.^[16]

While in 2011, the number of voices calling for such a Constitutional Convention were small in number, there were reports of state legislatures leaning in the direction of substantive constitutional reform, based in part on widespread dissatisfaction with the American political process at the national level. In contrast, however, analyst David O. Stewart, writing in the Huffington Post, suggested that most Americans would "recoil from the disruption" of a possible second Constitution.^[16]

Questions

Numerous questions surround the issue of how a convention might happen, partially because a second one has never happened in the nation's history.^[3] There is no consensus on how such a convention may be organized, led, or who may be selected to be in such a body.

Because there has not been a constitutional convention since 1787, efforts have been clouded by unresolved legal questions: Do the calls for a convention have to happen at the same time? Can a convention be limited to just one topic? What if Congress simply refuses to call a convention? Scholars are split on all those issues.

—report in the Indystar, 2011^[17]

Precedent

While there is no political precedent for such a convention, some scholars have noted that the original 1787 Convention, itself, was the first precedent, since it had only been authorized to amend the Articles of Confederation and not to draw up an entirely original and new Constitution which it did secretly during the summer of 1787.^[3] According to The New York Times, the action by the Founding Fathers set up a precedent that could be used today.^[18] But, since 1787, there has not been one overall constitutional convention.^[19] All 27 amendments to the Constitution, except the 21st, were first approved by two thirds of both the House and Senate and then approved by three fourths of the several states.^[17]

However, "in the context of the Seventeenth Amendment (making the Senate elected), ... the states came within one vote of calling for a convention, and the Congress quickly proposed the amendment the convention would have proposed."^[20]

It's far from clear how many of those calling for a constitutional convention want to completely replace the current constitution vs. merely proposing one or more amendments, which would still require separate approval by three fourths of the several states.

Scope of a possible convention

There have been calls for a second convention based on a single issue such as the Balanced Budget Amendment. According to one count, 17 of 34 states have petitioned Congress for a "convention to propose a balanced budget amendment."^[17] But Congress has been reluctant to "impose limitations on its spending and borrowing and taxing powers", according to anti-tax activist David Biddulph.^[17] Law professor Michael Stokes Paulsen suggested that such a convention would have the "power to propose anything it sees fit" and that calls for a convention to focus on only one issue "may not be valid", according to this view.^[17] According to Paulsen's count, 33 states have called for a general convention, although some of these calls have been pending "since the 19th century."^[17]

According to a New York Times report, different groups would be nervous that a convention summoned to address only one issue might propose a wholesale revision of the entire Constitution, possibly limiting "provisions they hold dear."^[18] Such groups include the American Civil Liberties Union, the John Birch Society, the National Organization for Women, the Gun Owners Clubs of America and conservative advocate Phyllis Schlafly.^[18] Accordingly, they are opposed to the idea of a second convention.^[18] Lawrence Lessig countered that the requirement of having 38 states ratify any proposed revision––three-quarters of all state legislatures––meant that any extreme proposals would be blocked, since either 13 red or 13 blue states could block such a measure.^[17]

Language

Constitutional law scholar Laurence Tribe noted that the language in the current Constitution about how to implement a second one is "dangerously vague", and that there is a possibility that the same interests that have corrupted Washington's politics may have a hand in efforts to rewrite it.^[1] Politicians and scholars who are reluctant to have a second constitutional convention may insist that all 34 state petitions to Congress must have an identical wording or otherwise the petitions would be considered invalid.^[6]

Particular views

Harvard Law School professor Lawrence Lessig has argued that a movement to urge state legislatures to call for a Constitutional Convention^[17] was the best possibility to achieve substantive reform:

But somebody at the convention said that "what if Congress is the problem -- what do we do then?" So they set up an alternative path... that states can call on Congress to call a Convention. The convention, then, proposes the amendments, and those amendments have to pass by three fourths of the states. So, either way, thirty eight states have to ratify an amendment, but the sources of those amendments are different. One is inside, one is outside.

—--Lawrence Lessig, 2011.^[21]

Lessig argued that the ordinary means of politics were not feasible to solve the problem affecting the United States government because the incentives corrupting politicians are so powerful.^[22] Lessig believes a convention is needed in view of Supreme Court decisions to eliminate most limits on campaign contributions.^[23] He quoted congressperson Jim Cooper from Tennessee who remarked that Congress had become a "Farm League for K Street" in the sense that congresspersons were focused on lucrative careers as lobbyists after serving in the Congress, and not on serving the public interest.^[24] He proposed that such a convention be populated by a random drawing of citizens' names as a way to keep special interests out of the process.

Constitutional scholar and University of Texas Law School professor Sanford Levinson wrote Our Undemocratic Constitution: Where the Constitution Goes Wrong and called for a "wholesale revision of our nation's founding document."^[25] Levinson wrote:

We ought to think about it almost literally every day, and then ask, 'Well, to what extent is government organized to realize the noble visions of the preamble?' That the preamble begins, 'We the people.' It's a notion of a people that can engage in self-determination.

—--Sanford Levinson, 2006^[26]

Tennessee law professor Glenn Reynolds, in a keynote speech at Harvard Law School, said the movement for a new convention was a reflection of having in many ways "the worst political class in our country's history."^[1]

Political scientist Larry Sabato believes a second convention is necessary since "piecemeal amendments" have not been working.^[11] Sabato argued that America needs a "grand meeting of clever and high-minded people to draw up a new, improved constitution better suited to the 21st century."^[11]

Author Scott Turow sees risks with a possible convention but believes it may be the only possible way to undo how campaign money has undermined the "one-man one-vote" premise.^[23]

Fewer new constitutions are modeled along the lines of the American version, according to a study by David Law of Washington University.^[27] Supreme Court Justice Ruth Bader Ginsburg views the United States Constitution as more of a relic of the 18th century rather than as a model for new constitutions, and she suggested in 2014 that a nation seeking a new constitution might find a better model by examining the constitutions of South Africa (1997), the Canadian Charter of Rights and Freedoms (1982) and the European Convention on Human Rights (1950).^[27]

I would not look to the United States Constitution if I were drafting a constitution in the year 2012.

—Ruth Bader Ginsburg, 2014^[27]

Current efforts to call a Second Constitutional Convention

Wolf-PAC

There have been calls by the Occupy Wall Street and related Occupy movements to focus demands on an Article V convention.^[28] A political action committee called Wolf-PAC, headed by The Young Turks host Cenk Uygur, emerged from New York's Occupy movement; the PAC calls for a constitutional amendment to remove money from politics.^[29][30] In 2014, the states of Vermont, California, Illinois and New Jersey prompted by Wolf PAC, passed a resolution calling for a convention of the States to overturn the Citizens United decision by the Supreme Court.^[31]

Citizens for Self-Governance

A group called Citizens for Self-Governance (CSG) is actively engaged in an effort to call an Article V Convention. Through an initiative called Convention of States, CSG is seeking "to urge and empower state legislators to call a convention of states." CSG states that it initiated the Convention of States project "for the purpose of stopping the runaway power of the federal government."^{[32][33][34][35][36]} Mark Levin has supported CSG's efforts to a call a second constitutional convention.^[36] Levin's book The Liberty Amendments details his plan for an Article V convention of states, and eleven proposed amendments.^[37][38]

See also

• A More Perfect Constitution book by Larry Sabato
• Article V of the United States Constitution
• Catherine Crier
• Convention to propose amendments to the United States Constitution
• Lawrence Lessig
• Rootstrikers
• United States Constitution
• Wolf-PAC
• Citizens for Self-Governance

Notes

References

• Lessig, Lawrence (2011). Republic, Lost: How Money Corrupts Congress – and a Plan to Stop It. Twelve. ISBN 978-0-446-57643-7. 

External links

• Lawrence Lessig talk in which he calls for a Constitutional Convention
• Description of the Harvard Law School conference about a new Constitutional Convention
• Online Second Constitutional Convention, Currently in Alpha Testing