If You Don't Trust Congress Or SCOTUS, Then Let's Call A Constitutional Convention!

Maybe it's time for a radical idea.

Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesOr an “Article V convention to amend the Constitution,” to be more precise.

It’s sitting right there in the Constitution. A loophole to take big, important questions out of the hands of federal legislators and the tortured readings of 9 8 justices. Just call a convention to propose some amendments.

At last night’s Intelligence Squared U.S. debate (presented in conjunction with the National Constitution Center), Professor Lawrence Lessig and Tea Partier Mark Meckler argued that there are “big ticket” constitutional items facing America that Congress cannot and will not — as a matter of political will, special interest capture, and/or political expedience — tackle and the people need to call a convention to take that power back. To use an example near and dear to Professor Lessig’s heart, campaign spending is virtually unfettered right now and protected by this Supreme Court’s reading of the First Amendment despite broad, bipartisan support among average citizens. Lessig and Meckler contend it’s high time we call one of these and tackle these issues that most people — outside of Congress — agree on.

(You can watch the debate here… and a quick aside, John Donvan continued his excellent work moderating these debates — holding debaters to task, challenging them when they fail to respond, and cutting through unfair characterizations. It’s a tough job to moderate and become a natural part of the event without distracting from the participants.)

To refresh everyone of relevant language from Article V:

The Congress… on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which… shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof….

But Walter Olson and Professor David Super opposed this solution. Honestly, coming into the debate I found myself against the idea as well, but Lessig had the upper hand throughout the evening and handily won the debate on the merits.

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The problem for Olson and Super was a profoundly defensive argumentative strategy. As the debate wore on, there just wasn’t any “there” there for the opposition beyond ticky-tack workability questions. It’s just not enough to say, “it might not succeed.” There needs to be some argument that if it’s tried, it will be worse than doing nothing. On this score, the debate boiled down to three key arguments, and Lessig eviscerated all of them:

  • The “Runaway Convention”: It’s the classic argument in this arena, and the opposition dutifully placed a lot of eggs in this basket. The original Constitutional Convention tore up the Articles of Confederation, so what’s to say this one won’t do the same thing? Well, because we’re NOT TALKING ABOUT A CONSTITUTIONAL CONVENTION. Lessig repeatedly corrected the record: an Article V convention to propose amendments is in the Constitution and whatever the delegates draft must still be ratified by 38 state legislatures. They can’t wish that provision away. That’s a high bar to prevent mischief.
  • Special Interest Capture: It’s not 1787 anymore and this convention won’t be a closed-door affair. Big, monied interests will get into the room and exert tremendous influence. And after the amendment is proposed out of the convention, special interest money has overcharged power in state legislatures, meaning the ratification process would be rife with abuse. The infamous ALEC organization is all over the convention idea for a reason. Except… how is this unique to the convention proposal? Big, monied interests are buying and selling federal legislators now and state legislature ratification is part of this process no matter what happens. This is another purely defensive argument: there’s only a risk that the convention is a just as bad a framework for amendments as Congress. Especially because many state legislatures are non-professional and less interested in what special interests are hawking.
  • One Person, One Vote: This was one of the opposition’s best arguments but it withered on the vine. Given the generally accepted premise that a convention would be “one state, one vote,” it disenfranchises people in large states. By contrast, the involvement of the House of Representatives in the traditional process keeps that in check. Professor Super explained that one could reach the muster to propose an amendment with states totaling 18 percent of the population and the 38 states required to ratify an amendment could be comprised of a mere 53 percent of the population. Still a majority, but hardly the overwhelming bar that Lessig and Meckler make it out to be. An amendment passed with a bare majority risks even further political divisiveness in a country that relies on the population seeing the Constitution as more than a 50-50 proposition. Lessig argued that the harms of constitutional inaction far outweigh this hypothetical evil (strange “red state-blue state” bedfellows would be required to get these extreme numbers). In short, this is a good opposition argument that they allowed Lessig to severely mitigate.

Ironically the best argument against Article V Conventions came up repeatedly during the debate but both sides agreed with it. A Balanced Budget Amendment is wildly popular among “We the People” and a popular candidate for a convention. But it’s also a mind-numbingly stupid idea and precisely the reason why we shouldn’t let something like this happen. Oh, “but I don’t run my checkbook that way!” YES, YOU DO. You have credit card debt. You have student loan debt. You have a mortgage. And even if you’re a regular Polly Payoff, there’s some time in your life that you were in debt and it’s exactly that kind of flexibility that the government also needs. Sure, some state legislatures have balanced budget amendments, but they aren’t responsible for bailing out global economies. That’s not to say that the United States government shouldn’t follow it’s current strategy of slashing revenues whenever it comes within sniffing distance of a balanced budget, but an amendment to tie the hands of future governments is stupid.

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And it’s the sort of overly simplistic garbage that a convention could drop on America’s doorstep. If the opposition wanted to win they’d go all in on the basic philosophy of little-r republicanism: some issues are sufficiently complex that regular people shouldn’t be involved in solving them. Professor Super raised his skepticism of trusting the people more than once, but it was portrayed as elite griping without concrete examples of exactly how an open process could do real harm to the country.

Without that though, the idea of conventions had no concrete downside. It may not be as much of a panacea as Lessig and Meckler make it out to be, but there wasn’t a good explanation in this debate of how it’s any worse than inaction.

In short, Larry Lessig absolutely demolished his opposition in last night’s Intelligence Squared U.S. debate. The audience decided that he lost anyway because people are morons.

And, come to think of it, Lessig’s loss proves the opposition’s argument: I wouldn’t trust the people who made this decision with amending a grocery list.


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.