Deeper Into the Absurd—A New Constitutional Convention

The lead paragraph in a recent New York Times article, read, “As Republicans prepare to take control of Congress and the White House, among the many scenarios keeping Democrats up at night is an event that many Americans consider a historical relic: a constitutional convention.” The authors noted that the current Constitution allows “Congress to convene a rewrite session if two-thirds of state legislatures have called for one.” Once the brainchild of disaffected Democrats, the effort is now the province of emboldened conservatives, and the article quoted eminent Constitutional scholars as saying that the chances are real.

They aren’t.

To understand why a new constitutional convention is unlikely to be called and even less likely to be successful, it is necessary to engage in a practice that has become increasingly rare among Americans—examining our history to see what happened the first time.

When the delegates met in Philadelphia in May 1787, the nation’s governing document, if it could be called that, was the stunningly weak Articles of Confederation. Confederation had first been proposed by Benjamin Franklin in 1775—he called it “a firm League of Friendship”—and a committee to draft such an agreement was created in June 1776, the same time another committee was formed to draft the Declaration of Independence. Unlike the latter, which was completed and signed in less than a month, it took five years and at least six drafts for the Articles to be adopted.

The reason for the protracted delay was the unwillingness of states to cede power. At the time, each state had its own constitution, legal system, trade regulations, monetary system, voting and naturalization rules, and all the other trappings of an independent nation. They guarded these institutions jealously.

And so, when the Articles were finally approved in 1781, in the middle of a war, the national government was given almost no power. The United States of America, as the country was called for the first time, lacked both an executive and a judiciary; Congress was one house, with voting by state; nine assents were required to pass laws that could not be enforced, and unanimous consent was needed to alter the document in any way. To the consternation of military leaders like George Washington, the nation lacked an effective means to man and support an army or navy; taxes could be assessed but not collected; and there was no consistency of laws necessary to promote trade and commerce with foreign powers.

The country survived the war but by 1787 the nation was failing. Employing a contrivance, nationalists such as James Madison, Alexander Hamilton, and John Dickinson, with Washington’s support, convinced Congress to authorize a convention, but only to revise the Articles. The nationalists, of course, had a more ambitious goal in mind. When the Convention ended in September, the 55 men from 12 states who attended (although less than two dozen fully participated) had come up with a draft Constitution.

Although many of the delegates only agreed because the document was not nearly as strong as the nationalists would have preferred, leaving far too much power to the states, there were still severe doubts whether it could survive the ratification process. To increase the chances, they end-ran the Articles’ unanimity provision and required only nine states to ratify.

This was an enormous gamble.

With the Articles defunct, any state that refused to sign on would become an independent nation. It would be bad enough if sparsely populated Georgia or Rhode Island, which had deigned not to participate in the Convention, declined to join, but two states in which resistance was the strongest were Virginia and New York. Virginia was home to Washington, Madison, and Jefferson, among others, and if New York held out, the United States would be cut in two.

Both states ultimately agreed. In the Virginia ratifying convention, James Madison bested Patrick Henry in a brilliant duel of rhetoric, and in New York, Alexander Hamilton, with Madison’s help, triumphed over a formidable array of opponents led by powerful Governor George Clinton.

Thus, in the end, the Constitution was only adopted due to a combination of dire need, outsized intellects, and a good bit of luck.

The question is whether the nation is capable of achieving the same result again.

The chances are not great.

Although it would take three-quarters of the states to request a new convention (hardly a guarantee), let us assume that conservatives succeed in getting one called. The first problem would be whether voting would be by state, as was true in Philadelphia, or by individual delegate, which if so, would require a formula to determine how many delegates each state would be allowed. Let us further assume that, with conservatives in control, voting would be by state, where Republicans will hold a safe majority. By-state voting would totally annul the participation of blue states, meaning that roughly half of the nation’s deeply divided population would be forcing the result on the other half. That would not bother conservatives, of course, but would cast doubts on the legitimacy of any product the new convention produced.

Given what promised to be a stacked deck, would states such as California, New York, and Illinois bother to send delegates at all? There would be enormous pressure from their large Democratic majorities to boycott the entire affair. Even if they did not, any new Constitution that emerged would need to be ratified.

That promises to a thorny problem indeed.

If the process were the same as defined in 1787, with states holding ratifying conventions to say yea or nay, what would be the status of states that voted no? Technically, as in the first instance, they would become independent nations, which, say, California, would not mind in the least.

Another method would be to bypass the states and assign ratification to Congress, but that seems unworkable as well. Whether voting was by state delegations or individuals, it would necessitate requiring only a simple majority, since in either case, the standard for amendments of two-thirds in Congress and three-quarters of the states in Article V would be unattainable.

In addition, if a simple majority were the choice, state delegations that voted to reject the new plan could legitimately take the position that ignoring the current amendment rules voided the original Constitution. That would put the nation back to square one and eliminate any requirement of dissenting states to accept it, thus once more making them independent. The Supreme Court, a vestige of the scrapped Constitution, would therefore be irrelevant and any of its decisions nonbinding.

These are only some of the enormous logistical issues that would emanate from any attempt to abandon the old Constitution in favor of a new one. More pertinent, however, is why conservatives would risk trying for a new Constitution when they’ve gotten everything they could possibly want from the old one? Why risk changing the rules when the ones in place are already rigged in your favor?

The bigger risk for democracy, therefore, does not seem to be a new Constitution, but rather the one that we already have.