David Lewis Schaefer, Professor of Political Science, College of the Holy Cross
America’s Constitution, by far the longest continuously operative one in the world, is under attack from both sides of the political spectrum. On the right, conservative Texas Republican congressman Jodey Arrington has introduced legislation directing the U.S. archivist to tally petitions from state governments for a constitutional convention, following a never-used clause of Article V that authorizes Congress, upon application from two-thirds of the state legislatures, to “call a convention for proposing amendments” to the document.
Respected former Republican senator Rick Santorum has been a leading advocate of Arrington’s proposal, claiming that a convention is needed in order “to restore and reclaim this country’s traditional values and limited government closer to the people and individual freedom and responsibility.” While the mechanics of counting ballots from the states are complex, since petitions sometimes vary in language and some were submitted decades ago (and may even have been rescinded), Arrington believes the 34 petitions required to compel Congress to act may already have been received. Arrington, a “deficit hawk,” would seek according to the New York Times to confine the convention “to consideration of fiscal matters to serve as a check on federal spending and taxation.”
Contrary to Arrington’s and Santorum’s hopes, however, former Democratic senator Russ Feingold, now president of the American Constitution Society, described by the Times as a “liberal judicial group,” warns in a new book The Constitution in Jeopardy, co-authored with constitutional scholar Peter Prindville, that there is no way to limit a constitutional convention to a defined agenda, noting the danger of a “runaway” proceeding with delegates seeking to limit federal power over issues like the environment, education, and health care.
Regardless of how far one agrees with Feingold and Prindville’s particular policy concerns, they are right to warn of the risks of a runaway convention – even one that might alter fundamental aspects of our Constitutional structure, including the separation of powers, Presidential authority, the size, powers, and tenure of the Supreme Court, and so on. (For an illustration of the sort of sweeping scope that might be feared, consider the recently proposed new Chilean constitution, fortunately rejected by voters in a referendum, that would have eliminated the country’s senate; redefined the country as a “plurinational” state, potentially enabling 11 indigenous groups to have their own governing structures and court systems; and guaranteed over 100 “rights,” such as housing, education, internet access, and free legal advice, along with other guarantees unlikely to be affordable in practice.)
In 1787, when some critics of the American Constitution who objected to such alleged flaws as the lack of a bill of rights called for a new convention, the Federalists warned that such a convention, being considered in a time of political passions much more fervent and divisive than those that marked American society at the time of the actual convention (which met in utter secrecy), would be unlikely to produce a document superior to the one devised in Philadelphia, but would generate a far less satisfactory system. (See the conclusion of Federalist no. 37.) Federalists in several states instead guaranteed critics that once the Constitution was ratified, the first Congress would enact a Bill of Rights. (Under James Madison’s prudent guidance, it did so.) In today’s deeply polarized political environment, the Federalists’ warnings against calling a new convention apply with even greater force.
But disaffection with our Constitution is substantially more extreme among some academics, such as Ryan D. Doerter and Samuel Meyn, respectively professors of law at Harvard and Yale, who authored an August 21 Times opinion column titled “Liberals Need to Change the Rules.” Professors Doerter and Meyn hold that our “real need is not to reclaim the Constitution … but instead to reclaim America from constitutionalism” itself. Their fundamental complaint is that constitutions, “especially the broken one we have now,” “orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand and from those who live now.” (In this respect their premise is the same as that embodied in the title of the latest book by Erwin Chemerinsky, dean of the California-Berkeley law school, Worse than Nothing: The Dangerous Fallacy of Originalism. He’s asking the question why today’s progressives should be bound by the intent embodied in a text composed 235 years ago?)
Professors Doerter and Meyn elaborate their complaint by lamenting how the Constitution enables “reactionaries” to impede “radical redistributive change” while using concepts like due process and equal protection to abolish “abortion rights” and impede affirmative action. In a new book they cite, two other law professors urge progressives to stop treating constitutional law as an “autonomous” domain, instead calling on Congress and other “nonjudicial actors” to claim authority to “interpret the Constitution for themselves.” (Of course, as Abraham Lincoln stressed in his response to the Dred Scott decision, such nonjudicial actors already do possess and ought to exercise such authority by challenging manifestly unconstitutional decisions and working through the political process to get them overturned. That is just what opponents of Roe v. Wade, which established a “right” to abortion that was ungrounded in the Constitution’s text, succeeded in doing in finally bringing about its reversal in the Court’s recent Dobbs decision. Thus state governments regained their Constitutional authority to set limits to abortions in accordance with their citizens’ wishes.
But that’s not the sort of exercise of popular authority that the authors have in mind. Instead, they hold that Americans should learn the art of self-government “through ordinary statute: without being limited by a Constitution at all.” Why, they ask, should “claims about the best reading of some centuries-old text” substitute for “direct arguments about what fairness or justice demands”? Why not instead have “liberal legislators … make a case for abortion and labor rights on their own merits, without bothering with the Constitution”? (Actually, that’s just what the Court authorized advocates and opponents of broad abortion rights to do in Dobbs. Nor, except in the most extreme cases, has the Court ever since the Wagner Act significantly limited “labor,” that is, labor union, rights.)
The deepest flaw in constitutionalism, the professors assert, is that it “demands extraordinary consensus for meaningful progress, … condition[ing] democracy, in which majority rule always must matter most, on surviving vetoes from minorities.” Minority rights, in these legal scholars’ view, should never be allowed to trump simple majoritarianism. (Nor should majority rule be constrained by such outdated notions as due process and the equal protection of the laws.)
Given the failure thus far “to get the Constitution interpreted in an egalitarian way,” Professors Doerter and Moyn argue, the first step is to make the Constitution “more amendable,” by “pack[ing] the Union with new states,” enabling Americans “to use the formal amendment process” to “break the deadlock that the Constitution imposes” on the country through the Electoral College and the Senate, which because they are not elected on a purely majoritarian basis cause “substantial majorities” to be “foiled on issue after issue.” (The professors offer no evidence that majorities currently favor such policies dear to them as unlimited abortion rights or race- and gender-based quotas.) But that process must be succeeded by a “second stage” enabling Americans “to do politics through ordinary statute” without regard to whether any proposed law conforms to some “higher law,” that is, the Constitution.
An alternative “more aggressive[e]” route to liberal reform that the professors outline is for Congress to “simply pass a Congress Act,” “reorganizing” the legislature (without regard to the Constitutional text) to make it “more fairly representative,” possibly reducing the Senate to a mere “council of revision” like the Canadian Senate, “without the power to obstruct laws.” All this would facilitate the “constant reinvention of our society” that progressives demand.
Representative Arrington and Senator Santorum, you’ve been forewarned. Once you initiate an open-ended Constitutional Convention, you will have no control over its domain or its outcome. There are plenty of self-described progressives in both the political and academic realms who would love to wreak havoc with our nation’s governing document, undermining its promotion of government by what the Federalist Papers call the “deliberate sense of the majority” rather than passing whims; providing security for the rights of minorities of all sorts; and undermining the capacity of ordinary citizens to plan their lives in an orderly way, never knowing how the rules will be “reinvented” next.
It is lamentable that professors at our nation’s most renowned law schools show so little acquaintance with the records of the Constitutional Convention or the Federalist Papers that might explain to them the dangers of government by unstable majorities, imagining that free government can maintain the loyalty of its citizens without bothering to tailor its policies to attain a reasonable consensus among the people as a whole, so that all individuals, whatever policies they favor, can feel that their fundamental rights are secure. But it is also regrettable that leading “conservative” politicians show so little appreciation of the need for Constitutional continuity, as explained by Madison in Federalist no. 49. The remedy for the shortsighted fiscal policies they decry must be found in the existing political process, as structured by the Constitution.