A new Constitutional Convention

What’s the point of a national constitution? Ours was originally put together in Philadelphia in 1787, by 55 men who were concerned that the governments of the individual 13 states were doing a poor job securing the rights of the people, particularly quiet enjoyment of their property and engagement in trade and commerce. The result was a document creating a federal government with the power to create an orderly national economy that could promote commerce, but could also place some limits on misbehavior in the states. The mechanisms chosen to do this, however, also placed some limits on the federal government itself – again, to safeguard the rights of the American people. As U.S. schoolchildren used to learn, the two principal devices employed were separation of powers and federalism.  

The Constitution, then, should be understood as a means of restraining the power of government in order to protect the rights of the people. Eighteenth-century Americans understood something we have all but forgotten: there is no greater danger to a republic like ours than the exercise of arbitrary power by government officials. As James Madison explained in the famous Federalist Paper No. 51, if men were angels no government would be necessary, but since they are not an important task of republican government is to protect the people from the government itself. The framers of the 10th Amendment, which provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” were acting on Madison’s insight, and making clear that our Constitution was supposed to be creating a federal government of limited and enumerated powers. Further, the primary lawmaking power in the United States was supposed to vest in the people themselves, acting through their state and local governments.  

The framers understood that this limitation of the power of the federal government, pursuant to the principle that we now call “federalism,” was one of the two best means of protecting the sacred rights to life, liberty and the pursuit of happiness spoken of in our Declaration of Independence. The other means, separation of powers, was derived through the understanding of the great Enlightenment philosophers such as Montesquieu, who had written that there can be no liberty if, for example, the power of judging is not kept distinct from the power of legislating. If judges have the power to determine for themselves what ought to be the law, he understood, they usurp the power that belongs only to the sovereign – which, in the United States, is the people themselves.

We are increasingly coming to understand that because of a failure on the part of our judiciary, and in particular because of extraordinary behavior on the part of the Supreme Court, the Constitution’s structures of federalism and separation of powers have been weakened. With the Supreme Court’s approval of the Patient Protection and Affordable Care Act (i.e., “Obamacare”), the concept of a federal government of limited and enumerated powers has been severely undermined, because a federal government powerful enough to take over a sixth of the economy (the part devoted to health care) is powerful enough to take over all of it. With the court’s recent decision in Obergefell v. Hodges mandating all the states to accept same-sex marriage, it has blatantly demonstrated that it regards its role as legislative, and that it has forgotten Montesquieu. Obergefell should have come as no surprise, since for at least the past 80 years the court has been radically altering the meaning of the Constitution. It has repeatedly restricted the ability of state and local governments to legislate in areas of morality, religion, race, marriage, abortion, and commercial and criminal law (and often expanded the reach of the federal government in these areas). Historically, traditionally and constitutionally, these were the domain of the states and the people thereof.

Assuming that the wisdom of the Constitution’s framers is still valid, and assuming that we are beginning to realize that something has gone very wrong with our government, can anything be done? The power to reign in our government is still inherent in the American people themselves, and fortunately the Constitution provides a remedy: the amendment process, provided for in Article V. The framers understood that even their Constitution was not perfect, and that amendments would be necessary to further improve the constitutional devices of federalism and the separation of powers, as well as to restrain excesses of government. 

The Bill of Rights (the first 10 amendments), enacted in 1791, was the first instance of the amendment process being used to protect Americans’ heritage of limited government and fundamental rights – in this case, the fundamental freedoms of religion, speech, press, property, due process and limited government itself.  

There are two means of altering the Constitution specified in Article V. The first, used for all of the now 27 amendments, requires two-thirds of the members of both houses of Congress to vote for approval, followed by the agreement of three-quarters of the legislatures of the states. Congressional approval has proven to be a formidable barrier for amendments, as, for example, those of us who sought to secure passage of the flag protection amendment (“Congress shall have the power to prohibit the physical desecration of the flag of the United States”) discovered. Why Congress should be so hostile to the initiation of amendments by the people is something of a mystery. It could be, perhaps, a sincerely held belief that our Constitution is a sacred document that should not be trifled with, or it could simply be that incumbency in a country that now has a professional politician class (contrary to the wishes of the framers) creates a mindset that is unwilling to allow fundamental change of a kind that constitutional amendments permit. Especially given our current situation where the federal courts have given Congress so much power, it is unlikely to imagine that Congress will ever surrender any of that power through the passage of constitutional amendments.

Fortunately, however, the framers provided one more mechanism for constitutional change, one that has yet to be used in our 227 years: a constitutional convention, which would be our first since the original group of 55 met in Philadelphia. Article V provides that such a convention shall take place when requested by the legislatures of two-thirds of the states. It is the duty of Congress to call such a convention for the proposal of amendments, which would still have to be ratified by three-quarters of the state legislatures or, if Congress so provides, by constitutional conventions in three-quarters of the states. These conventions would be an extraordinary exercise of direct popular sovereignty. It would be an extraordinary demonstration that here the people still rule, and it would offer an extraordinary opportunity to put our nation back on the right track, to return to us some of the wisdom of the framers in creating a limited government.

There are those who quake at the idea of such a series of conventions, since there are virtually no limits to what might be done. Those who fear such a convention, of course, fear the power of the American people themselves, and it must be admitted that the framers created a limited government because they understood that sometimes passions rule the people. Madison and the others understood that calm reflection and supermajorities (as well as federalism and separation of powers) are needed to protect us from our own baser instincts. Still, the three-quarters requirement is a profound check to balance arbitrary popular passion.

Given how far we have strayed from the conception of the Constitution’s framers, and given the current great disappointment with our government and the loss of control over our own lives to an increasingly entrenched political class, it is no surprise that we are starting to see a movement to request such a constitutional convention take shape. 

For years now, Thomas E. Brennan – former chief justice of the Michigan Supreme Court – has been calling for a citizens initiative to promote the first Article V amendatory convention, through a group he founded called “Convention USA.” (Full disclosure: I sit on the advisory board of Convention USA, along with several other constitutional and legal scholars from various points on the political spectrum.) Brennan has even written a manual on how to achieve such constitutional change: “The Article V Amendatory Constitutional Convention: Keeping the Republic in the Twenty-First Century” (Lexington Books, 2014).

On Jan. 8, as reported by The Dallas Morning News, Texas governor Greg Abbott called for the Texas Legislature to initiate the request for an Article V convention. Such a convention was necessary, he explained, to “wrest power from a federal government ‘run amok.’” In Abbott’s view, such a convention was now necessary in order to “protect and hand on to the next generation” our basic freedoms and “to restore the rule of law in America.” 

In addition, Abbott also released a nearly 70-page plan that included nine proposed constitutional amendments that he believes “would unravel the federal government’s decades-long power grab and restore authority over economic regulation and other matters to the states.” Abbott’s call was seconded by noted political commentator Thomas Sowell, who asked rhetorically, “Is it better to have the Constitution amended de facto by a 5-to-4 vote of the Supreme Court? By the unilateral actions of a president? By administrative rulings by anonymous bureaucrats in federal agencies, to whom federal judges ‘defer’?”

What sort of amendments, then, might such a constitutional convention sensibly propose? Abbott’s office summarized his nine proposed amendments as follows: 

• Prohibit Congress from regulating activity that occurs wholly within one state. 
• Require Congress to balance its budget. 
• Prohibit administrative agencies – and the unelected bureaucrats who staff them – from creating federal law. 
• Prohibit administrative agencies – and the unelected bureaucrats who staff them – from pre-empting state law. 
• Allow a two-thirds majority of the states to override a U.S. Supreme Court decision. 
• Require a seven-justice supermajority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law. 
• Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution. 
• Give state officials the power to sue in federal court when federal officials overstep their bounds. 
• Allow a two-thirds majority of the states to override a federal law or regulation. 

In my 1994 book “Recapturing the Constitution,” I, too, suggested several amendments to return to the states discretion in matters involving morality, religion, family and reproductive rights, and to ensure that our Constitution, as the framers of the 14th Amendment desired, should be “color-blind.” Surely it would also be worthwhile for such a convention to consider term limits for our federal officials, and once again debate the flag protection amendment, as many veterans and men and women serving in our armed forces have desired.

Whatever amendments might be proposed and enacted, the most important thing is that such a convention would restore to the American people their fundamental right of self-government, the most sacred right of all. It is long overdue.  

Stephen B. Presser is the Raoul Berger Professor of Law Emeritus at Northwestern University’s Pritzker School of Law and a former constitutional issues adviser to the Citizens Flag Alliance.