June 19, 2019

The Hidden Threat to Our Constitution

David A. Super Professor of Law, Georgetown University Law Center

Despite all the alarming news we read daily about affronts to long-accepted political and legal norms, the greatest threat to our constitutional order is one that almost never makes the headlines.  Several aggressive, well-funded conservative advocacy groups, with occasional success enlisting politically naïve progressives, have been working hard to open up the U.S. Constitution to this country’s first convention since 1787.  Their success would jeopardize all civil liberties and all restraints on presidential power.  And they are much closer than most people would imagine.

The last effort to rewrite our Constitution was led by the unifying figure of George Washington.  This time, former Wisconsin Governor Scott Walker, one of our most divisive figures, is leading the effort.  After losing a razor-thin race for re-election, Governor Walker signed on with the Center for State-Led National Debt Solutions, one of several groups seeking to invoke Article V of the Constitution.  Under Article V, petitions from 34 states require Congress to call a convention to propose amendments to the Constitution.  These groups enjoy strong support from the American Legislative Exchange Council (ALEC), the right-wing corporate advocacy group aligned with the Koch brothers’ network best-known for promoting “Stand Your Ground” gun legislation and “bathroom bills”.

Walker’s group’s nominal goal is adding a balanced budget amendment to the Constitution.  A balanced budget amendment would create powerful pressure to cut social programs such as Social Security, Medicaid, and nutrition assistance.     A balanced budget amendment would deepen and lengthen recessions.  It would require a super-majority to prevent spending cuts or tax increases – which would further depress the economy – when a recession reduces revenues and increases demand for programs like unemployment insurance and food assistance.  Even without a balanced budget amendment, Congress has had trouble enacting stimulus legislation in recent recessions.  A balanced budget amendment likely would prompt a minority to extort pork-barrel spending or other policy concessions in exchange for allowing stimulus legislation.  This has occurred in states requiring supermajorities for fiscal legislation.  And a balanced budget amendment would feed partisanship.  With President Trump already threatening to settle immigrants specifically in Democratic-leaning areas – despite the Constitution’s call for “uniform” rules – we can expect future presidents to allocate required budget cuts to opposition states.

As devastating as a balanced budget amendment would be, it is only one of the dangers an Article V convention poses.  Another group, the Convention of the States Project (COSP), seeks an Article V convention for broader purposes.  One of these would be to “impose fiscal restraints on the federal government”.  This apparently is intended to invite an amendment that would not only require a balanced budget but also cap federal spending well below current levels.

COSP also seeks constitutional amendments to “limit the power and jurisdiction of the federal government”.  This presumably could strip the federal government of the power to pass civil rights, environmental, consumer protection, or other important legislation.  This is not implausible.  Leading Republicans have expressed misgivings about the civil rights laws, and this Administration has sharply reduced environmental and consumer credit standards.  Indeed, the requirements that states provide equal protection and adhere to the Bill of Rights extend “the power and jurisdiction of the federal government”.

Yet the dangers of an Article V convention go even beyond COSP’s ambitious agenda.  Nothing in Article V or anywhere else in the Constitution limits the scope of the changes a convention could consider.  And even if such a limit existed, nothing in Article V empowers any body to regulate or constrain a convention.  Congress’s powers under Article V are confined to specifying the ratification method.  The Supreme Court has held that efforts to amend the Constitution involve “political questions” beyond the jurisdiction of the federal courts.

The only prior convention empowered to start rewriting our Constitution – the Philadelphia Convention of 1787 – shows how easily an Article V convention could disregard any purported limits and open up the entire Constitution.  Unlike the proposed Article V convention, the Philadelphia Convention was subject to strict, binding limits on its jurisdiction.  Article XIII of the Articles of Confederation prohibited any amendments not agreed to by every state; Article VI forbade agreements among states outside the Articles of Confederation.  After being called to propose amendments to the Articles, the Philadelphia Convention quickly discarded those rules and began writing an entirely new constitution.  It also decreed that its new constitution would become effective upon ratification by nine states, not the unanimous approval Article XIII demanded.

Article V is similarly silent on how a convention would operate.  Here again, neither Congress nor the courts have any authority to impose rules.  Convention advocates, however, insist that each state would have an equal vote.  If so, then the twenty-six least-populous states – with a combined population of less than 18% of the national total – could craft amendments for the nation.  The views of 577,737 people in Wyoming could cancel out those of the 39.6 million people of California.

Supporters of an Article V convention conjure a fairytale process with citizens from across the country coming together with openness and good will to seek the common good.  The reality of today’s bare-knuckle politics suggests otherwise.  Big-money interests that already spend heavily to influence Congress would redouble their efforts in pursuit of permanent protection for their interests through a constitutional amendment.  Russia, and possibly other foreign powers, likely would intervene surreptitiously.

Little wonder that leaders across the political spectrum have expressed alarm at the prospect of an Article V convention.  Several of the nation’s founders staunchly opposed holding a new convention.  John Jay expressed skepticism that most political complaints justified “running such extravagant risques” as a new convention would entail.  Chief Justice Warren Burger stated that a “Constitutional Convention today would be a free-for-all for special interest groups”.  Justice Antonin Scalia said “I certainly would not want a Constitutional Convention. I mean whoa.  Who knows what would come out of that?”  Justice Arthur Goldberg noted “it cannot be denied that" the 1787 Philadelphia convention “broke every restraint intended to limit its power and agenda”, and “any attempt at limiting the agenda [of an Article V convention] would almost certainly be unenforceable.”

Nor would the ratification process protect against a runaway convention.  An Article V convention could follow the Philadelphia Convention’s example and unilaterally redefine the ratification process.  It could, for example, call for a national referendum to ratify its handiwork.  Even if the current state-based ratification process remains, majorities in the thirty-eight smallest states – with just over 40% of the nation’s population – would suffice to bind the country.

Moreover, the convention could improve its chances of securing ratification by bundling together provisions appealing to different political groups.  Nobody can be sure what would happen if the convention combined a “national security” exception to the First Amendment along with limiting Second Amendment protections to official militia activities.  Similarly, an amendment revising the Electoral College, declaring that this country is a Christian Nation, and prohibiting all affirmative action might, on balance, appeal to a fairly broad segment of the electorate.  Here again, this approach has considerable precedent:  several existing amendments, including the Fifth, Sixth, Eighth, and Fourteenth, combine several disparate provisions.

Each of us have seen infuriating setbacks in constitutional law.  The harm resulting from these changes should not be underestimated.  All these changes, however, resulted from judicial decisions.  As such, they are subject to reversal once the national mood shifts and the Supreme Court’s composition changes.

The damage an Article V convention would do is of an entirely different character.  Losses there could not be made up without holding a new Article V convention, with all the risks that it could make things even worse.

States that have not yet passed convention calls should resist the entreaties of Scott Walker, ALEC, COSP, and the rest.  States that have convention calls on the books should rescind them as soon as possible, just as Delaware, Maryland, Nevada, and New Mexico have done in recent years.  If they do not, convention proponents are likely to seize the opportunity to declare the 34-state threshold met next time they control both chambers of Congress.  This would require some serious fuzzy math, but proponents have shown their willingness to go that route and we have little reason to hope that Congress will take a principled stand against them.  This is truly a case where an ounce of prevention exceeds many tons of attempted cure.

Constitutional Interpretation