Republicans have big plans in mind for when they reclaim the White House and both chambers of Congress in January. President-elect Donald Trump’s disruptive agenda spans across immigration, the economy and foreign policy. But Democrats around the country are concerned that the GOP has its sights set even higher: a complete rewrite of the Constitution.
After all, the men who gathered in Philadelphia during the summer of 1787 were not there to draft a new constitution.
At issue is a provision that allows Congress to call for a new convention to propose alterations to the country’s foundational text. But, as The New York Times recently reported, states like California are now racing to rescind their previous calls for a constitutional convention. Their fear is that even a convention called under Trump to deal with a narrow issue, like a balanced budget amendment, would lead to a “runaway convention” where anything and everything is on the table.
It’s not an unfounded worry on Democrats’ part. After all, the men who gathered in Philadelphia during the summer of 1787 were not there to draft a new constitution. The Continental Congress had only tasked the delegates with “the sole and express purpose of revising the Articles of Confederation,” which only loosely governed the 13 independent American states. Instead, they emerged with a document that not only abolished the articles entirely but provided for a novel form of government.
Crucially, the draft that was presented to the states for ratification was purposefully incomplete. Under the Articles of Confederation, the only method of revision required unanimity from all 13 state legislatures. As you can imagine, this made the chance of amending them exceedingly low. The Constitution offered up two alternatives, both in Article V of the text:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, 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, as the one or the other mode of ratification may be proposed by the Congress.
The first method has been used to add 27 updates to the Constitution since it was ratified, most notably with the first Congress’ passage of the Bill of Rights. These first 10 amendments were crucial in blocking the near immediate calls for a second convention from the likes of Patrick Henry and other anti-Federalists. Since then, there have been sporadic calls over the years to convene a new gathering to overhaul the Constitution — but as with many reform movements, the politics of altering the status quo have been difficult to overcome.
The amendment process in Congress has languished in the last half-century.
As someone who loves to probe and prod at a juicy hypothetical, I can see why the idea of a new convention has both appeal and detractors. The amendment process in Congress has languished in the last half-century. Proposed amendments that would require a balanced budget, ban flag-burning and abolish the Electoral College have all failed to pass both the House and Senate and be sent to the states for approval. Taking proposals directly to a convention where new deals could be made and different coalitions forged would skirt the thorny issue of which party controls Congress at any given time.
But the convention process isn’t exactly a silver bullet for anyone wanting a constitutional do-over. The bar for calling a convention — two-thirds of state legislatures — is lower than the three-fourths approval required from the states to ratify any proposal. It’s a hurdle that has failed to be met most recently with the push to enshrine equal rights among the sexes in the Constitution. The most recent success was back in 1992.
With Republicans holding only 28 out of 50 state legislatures, there’s little chance of a GOP-dominated convention’s amendments getting rammed through and approved. Ultimately, while I’m not going to tell any state’s Democrats that it’s unwise to rescind their state’s call for a convention, I think it’s best for now to leave the idea of a backdoor reboot to the country solidly in the realm of political fan fiction.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House.