Second Constitutional Convention of the United States

Not to be confused with Convention to propose amendments to the United States Constitution.

The calling of a Second Constitutional Convention of the United States is a proposal made by some academics and activists from across the political spectrum for the purpose of making substantive reforms to the federal government of the United States by rewriting the U.S. Constitution.^[1][2]

Background

Since the initial 1787–88 debate over ratification of the Constitution, there have been sporadic calls for the convening of a second convention to modify and correct perceived shortcomings in the Federal system it established. Article V of the Constitution provides two methods for amending the nation's frame of government. The first method authorizes Congress, "whenever two-thirds of both houses shall deem it necessary" to propose constitutional amendments. The second method requires Congress, "on the application of the legislatures of two-thirds of the several states" (presently 34), to "call a Convention of States for proposing amendments".^[3]

In 1943, Alexander Hehmeyer, a lawyer for Chicago-based Marshall Field's department store as well as Time Inc., wrote A Time for Change (Farrar & Rinehart), in which he proposed a second Constitutional Convention to streamline the federal government.^[4] In the late 1960s, Illinois Senator Everett Dirksen called for a constitutional convention by appealing to state legislatures to summon one.^[5]

Three times in the 20th century, concerted efforts were undertaken by proponents of particular issues to secure the number of applications necessary to summon an Article V Convention. These included conventions to consider amendments to provide for popular election of U.S. Senators, permit the states to include factors other than equality of population in drawing state legislative district boundaries, and to propose an amendment requiring the U.S. budget to be balanced under most circumstances. The campaign for a popularly elected Senate is frequently credited with "prodding" the Senate to join the House of Representatives in proposing what became the Seventeenth Amendment to the states in 1912,^{[6][full citation needed][verification needed]} while the latter two campaigns came very close to meeting the two-thirds threshold in the 1960s and 1980s, respectively.^[3][7][8] In 2013, the number of states calling for a convention to consider a balanced budget amendment was believed to be either 33 or 20,^[9] and the tally may depend on rulings about whether past state applications have been rescinded. In 1983, Missouri applied;^[10] in 2013, Ohio applied.^[11]

In January 1975, Congressman Jerry Pettis, a Republican from California, introduced a concurrent resolution (94th H.Con.Res.28^[12]) calling a convention to propose amendments to the Constitution. In it, Pettis proposed that each state would be entitled to send as many delegates to the convention as it had Senators and Representatives in Congress and that such delegates would be selected in the manner designated by the legislature of each state. On August 5, 1977, Representative Norman F. Lent, Republican from New York, introduced a similar concurrent resolution (95th H.Con.Res.340^[13]). Both were referred to the House Judiciary Committee. No further action on either was taken.

A report in the Pittsburgh Post-Gazette in 2011 described the movement for a convention as gaining "traction" in public debate,^[2] 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."^[2] 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 same was true in 2012 with New Hampshire lawmakers who had adopted a resolution to rescind previous convention applications as recently as 2010.

 

Columnist William Safire

A report by analyst David Gergen on 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."^[14] Scholars such as Richard Labunski, Sanford Levinson, Lawrence Lessig, Glenn Reynolds,^[2] Larry Sabato,^[15] and newspaper columnist William Safire^[16] have called for constitutional changes that would curb the dominant role of money in politics.^[2] 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.^[17] French journalist Jean-Philippe Immarigeon suggested in Harper's Magazine that the "nearly 230-year-old constitution stretched past the limits of its usefulness".^[18] A 2011 report in USA Today suggested that 17 of the required 34 states had petitioned Congress by then for a convention to deal with the issue of a balanced budget amendment.^[19] A report on CNN suggested that 30 state legislatures are considering resolutions either calling for a constitutional convention or else proposing changes to the Constitution.^[20] 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 United States Senate which utilize a supermajority vote requirement as a means to prevent minorities or powerful Senators from blocking legislation, term limits for Senators and Representatives, and a balanced budget amendment.^[21]

Convention of States

 

Convention of States map^[22]

  (19) Passed Convention of States Resolution

  (6) Passed One Chamber

  (15) Active Legislation

  (11) No Action

A Convention of States is one of two methods authorized by Article Five of the United States Constitution whereby amendments to the United States Constitution may be proposed: two thirds of the State legislatures (that is, 34 of the 50) may call a convention to propose amendments, which become law only after ratification by three-fourths (38) of the states. The Article V convention method by States has never been used.^[23]

Questions

Numerous questions surround the issue of how such an unprecedented convention might be conducted.^[19] 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 Indianapolis Star, 2011^[24]

Precedent

While there is no precedent for such a convention, scholars have noted that the original 1787 Convention, itself, was the first precedent, as it had only been authorized to amend the Articles of Confederation, not to draw up an entirely new frame of government.^[19] According to The New York Times, the action by the Founding Fathers set up a precedent that could be used today.^[25] But, since 1787, there has not been an overall constitutional convention.^[26] Instead, each time the amendment process has been initiated since 1789, it has been initiated by Congress. All 33 amendments submitted to the states for ratification originated there. The convention option, which Alexander Hamilton (writing in The Federalist No. 85) believed would serve as a barrier "against the encroachments of the national authority",^[27] has yet to be successfully invoked, although not for lack of activity in the 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."^[24] But Congress has been reluctant to "impose limitations on its spending and borrowing and taxing powers", according to anti-tax activist David Biddulph.^[24] 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.^[24] 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."^[24]

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."^[25] 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.^[25] Accordingly, they are opposed to the idea of a second convention.^[25] 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.^[24]

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.^[2] 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.^[8]

Particular views

 

Lawrence Lessig

Harvard Law School professor Lawrence Lessig has argued that a movement to urge state legislatures to call for a Constitutional Convention^[24] 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.^[28]

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.^[28] Lessig believes a convention is needed in view of Supreme Court decisions to eliminate most limits on campaign contributions.^[29] 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.^[30] He proposed that such a convention be constrained by the decisions of state-based "citizen assemblies," assemblies composed of a random and representative selection of citizens, as a way to keep special interests out of the process.^[31]

 

Sanford Levinson

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."^[32] 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^[33]

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."^[2]

Political scientist Larry Sabato believes a second convention is necessary since "piecemeal amendments" have not been working.^[15] 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."^[15]

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.^[29]

Few new constitutions are modeled along the lines of the U.S. one, according to a study by David Law of Washington University in St. Louis.^[34] Supreme Court Justice Ruth Bader Ginsburg viewed the United States Constitution as more of a relic of the 18th century rather than as a model for new constitutions. She suggested in 2012 that a nation seeking a new constitution might find a better model by examining the Constitution of South Africa (1997), the Canadian Charter of Rights and Freedoms (1982) and the European Convention on Human Rights (1950).^[34]

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

— Ruth Bader Ginsburg, 2012^[34]

See also

• A More Perfect Constitution, book by Larry Sabato
• The Liberty Amendments, book by Mark Levin
• Intergovernmental Conference
• Convention to propose amendments to the United States Constitution (Convention of States)

References

1. Shea, Christopher (November 2, 2011). "Time for a Constitutional Convention?". Wall Street Journal. Retrieved 2011-12-14.
2. O'Toole, James (December 12, 2011). "Constitutional convention call gains traction". Pittsburgh Post-Gazette. Retrieved 2011-12-14.
3. Neale, Thomas H. (April 11, 2014). "The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress" (PDF). Congressional Research Service. pp. 1–2. Retrieved November 17, 2015.
4. Marvine Howe (February 24, 1993). "Alexander Hehmeyer, 82, Lawyer For the Family of Marshall Field". The New York Times. Retrieved December 23, 2011.
5. . Time Magazine. Aug 8, 1969. Archived from the original on December 14, 2008. Retrieved December 23, 2011.
6. Lessig (2011, pp. 292–3).^{[full citation needed][verification needed]}
7. Rossum, Ralph A. (2001). Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy. Lanham, Maryland: Lexington Books. p. 207. ISBN 978-0-7391-0285-5. Retrieved October 23, 2015.
8. Theo Lippman Jr. (May 25, 1992). "Just Memorial Day. It is also the 215th ..." Baltimore Sun. Retrieved 2011-12-23.
9. Robert Higgs, Northeast Ohio Media Group, November 25, 2013, House and Senate leaders to tout need for balanced budget amendment to U.S. Constitution, Accessed Dec. 29, 2013
10. Terry Ganey, January 23, 2010, Columbia Daily Tribune, Legislators push balanced budget: U.S. deficits spur amendment call, Accessed Dec. 29, 2013, "...Legislatures have petitioned Congress to adopt an amendment in the past. Kelly recalled voting for one in 1983. ... "
11. Jeremy Pelzer, Northeast Ohio Media Group, November 22, 2013, Ohio lawmakers join in push for national convention on balanced-budget amendment, Accessed Dec. 29, 2013, "...under Article V of the U.S. Constitution, such a convention would be held if 34 state legislatures ask for it ... would then have to be ratified by 38 states to take effect. ... "
12. Pettis, Jerry (14 January 1975). "Titles - H.Con.Res.28 - 94th Congress (1975-1976): Concurrent resolution calling a convention to propose amendments to the Constitution of the United States". www.congress.gov.
13. Lent, Norman (5 August 1977). "H.Con.Res.340 - 95th Congress (1977-1978): Concurrent resolution calling for the convening of a convention for proposing amendments to the Constitution of the United States". www.congress.gov.
14. David Gergen (November 15, 2011). "Is money's deep role in politics the root of our woes?". CNN. Retrieved 2011-12-14.
15. "America's constitution: If it ain't broke". The Economist. Nov 8, 2007. Retrieved 2011-12-23.
16. Letter to the editor (October 10, 1987). "In Defense of John Jay, Our First Chief Justice". The New York Times. Retrieved 2011-12-23. {{cite news}}: |author= has generic name (help)
17. Staff writer, reviewing Nation of Devils: Democratic Leadership and the Problem of Obedience by Stein Ringen, The Economist, Oct. 5, 2013, The maturing of democracy – Picking up the tab – Democracy has survived many crises. Elected governments should worry less about voting lobbies and more about how to govern well, Accessed Nov. 8, 2013, "...About democracy in America, Mr Ringen nears despair. Nothing short of a total overhaul of the constitution will repair the years of accumulated damage and dysfunction, he believes. ... "
18. Jean-Philippe Immarigeon, Harper's Magazine, February 2014 issue, Dissolve Congress: A cure for constitutional crisis, Accessed Jan. 25, 2014, "...experienced America's institutional breakdown ..."
19. Gregory Korte (November 29, 2011). "Balanced budget amendment push sparks debate". USA Today. Retrieved 2011-12-14.
20. Lou Zickar (August 19, 2011). "What taxpayers want". CNN. Retrieved 2011-12-14.
21. David O. Stewart (May 13, 2010). "How Would You Change the Constitution?". Huffington Post. Retrieved 2012-01-10.
22. "Progress Map: States that have passed the Convention of States Article V application".
23. "Progress Map: States that have passed the Convention of States Article V application".
24. "Balanced budget amendment push sparks debate". Indystar.com. November 30, 2011. Retrieved 2011-12-23.
25. Special to the New York Times (April 2, 1987). "Washington Talk: The Constitution; To Amend or Not: The Debate Continues". The New York Times. Retrieved 2011-12-23.
26. Staff writers (August 13, 2010). "A futile effort to strip birthright citizenship". Denver Post. Retrieved 2011-12-23.
27. Sen. David Long "Amending the U.S. Constitution by State-Led Convention" 2014-01-24 at the Wayback Machine
28. Lawrence Lessig (Nov 16, 2011). "Republic, Lost: How Money Corrupts Congress – and a Plan to Stop It". Google, YouTube. Retrieved 2011-12-13. (see 32:20 minutes into the video)
29. James Warren (December 10, 2011). "Let's Do Something About Privilege, Donors, Corporations and the Constitution". The New York Times. Retrieved 2011-12-23.
30. Lawrence Lessig (February 8, 2010). "How to Get Our Democracy Back". CBS News, The Nation. Retrieved 2011-12-14.
31. Lessig, Lawrence. "Making a Constitutional Convention Safe for Democracy". The New York Review. Retrieved 10 May 2023.
32. Michael Kinsley (November 5, 2006). "Essay: Election Day". New York Times: Sunday Book Review. Retrieved 2009-10-10.
33. "Sanford Levinson". Public Broadcasting Service: Bill Moyers' Journal. December 21, 2007. Retrieved 2009-10-10.
34. Staff reporters and Steven Sweeney, March 4, 2012, Massachusetts Daily Collegian, A Second Constitutional Convention, Accessed April 7, 2014, "...As Justice Ginsburg's comments suggest, the U.S. Constitution is more a relic of the 18th century than a workable plan for government in the 21st. A recent study conducted by David Law ... concluded that our Constitution's global appeal has diminished markedly. ... "