Richard Davis: Is it time for another constitutional convention?

Published: Wednesday, July 9 2014 12:00 a.m. MDT

Updated: Tuesday, July 8 2014 7:44 p.m. MDT

Overall, a second constitutional convention is worth serious consideration.

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Those on the left and those on the right rarely agree on anything. But many are beginning to agree on one thing — the need for another constitutional convention. On the right, a group calling themselves the Convention of States wants a constitutional convention to pass a balanced budget amendment. On the left, a group called Wolf-PAC seeks one to pass an amendment to check corporate power in campaign finance.

Such a convention would be unprecedented. If it occurred, it would be the main political event of the day. But is it a good idea?

According to the U.S. Constitution, a constitutional convention can be convened when two-thirds of the state legislatures call for one to propose constitutional amendments. Only rarely has this mode of amending the Constitution been seriously pursued. A little over one hundred years ago, 31 states called for a convention to allow direct election of U.S. senators. The result was congressional passage (and state ratification) of the Seventeenth Amendment. In the early 1960s, state legislatures sought to overturn a Supreme Court decision ruling that state legislative districts had to be equally apportioned. The convention call was only one state away from the two-thirds requirement when the effort petered out. Again, in the 1980s, an effort to convene a convention for a balanced budget amendment came within two states of passage.

A critical question is a “runaway convention.” Could a convention’s agenda range beyond the amendments proposed in the call for the convention? If history is any guide, the answer is yes. The Constitutional Convention in Philadelphia quickly moved to write a new constitution, rather than merely amend the ineffective constitution at that time — the Articles of Confederation. Although few are proposing a brand new constitution today, historical precedent suggests a constitutional convention would not be restricted in what it proposed as possible amendments.

Some legislatures believe they can limit what amendments are discussed at a constitutional convention through explicit orders to their delegates. The Utah Legislature, for example, passed a bill requiring that a delegate to a constitutional convention vote only on specific matters raised by the state’s application for a constitutional convention. Of course, the result would be the state would lack representation when other matters are discussed.

This tactic of seeking to limit a convention’s agenda is hardly new. In 1787, when the state legislatures appointed delegates to the Philadelphia convention, many explicitly instructed their state’s delegates to only amend the Articles rather than propose a new constitution. We are glad those delegates ignored their state legislatures. Not knowing what might occur at a convention, today’s delegates would, and should, do the same.

Overall, a second constitutional convention is worth serious consideration. Here’s why:

A convention would remind all Americans of the importance of the U.S. Constitution in our nation’s governance. The organization of the convention, the discussion of the amendments, the explanation of the amendment process, and the very notion of why a constitutional government exists would be the talk of the nation for several months. It would be a large-scale, and much needed, public civics lesson.

But another advantage would be the emphasis on consensus building. Since any amendment would require the ratification of three-fourths of the state legislatures, delegates would seek to adopt amendments that have consensual support rather than just narrow majority approval, as is true in Congress. In an age of partisan gridlock, this need for building consensus rather than governing with slender majorities (or vocal minorities) has been lost.

For example, an amendment declaring a constitutional right for gays to marry would fail due to the lack of current widespread public support. However, if that amendment included specific religious exemptions that satisfied religious organizations and individuals that they could maintain their own religious beliefs and practices, it might succeed. That kind of pragmatic coalition building to achieve broad support is exactly the kind of political action that should be encouraged. Currently in Washington, it is condemned and rejected.

It is most likely these efforts to propose a new convention will fail. But there could be benefits for the nation. And that suggests this may be the opportune moment to try.

Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU.

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