The Constitution in Jeopardy

PROLOGUE

January 29, 2019, was a light workday in the Arkansas State Senate. The twenty-five Republicans and nine Democrats approved a resolution congratulating the state football champions, altered prison disciplinary grievance procedures (passed 32–2), changed rules regarding safe deposit boxes (34–0), raised the maximum borrowing limit for certain state-issued loans (34–0), and altered the procedure for confirming new highway commissioners (34–0). All told, the Senate adjourned in under two hours—an hour earlier than planned. Observers in the gallery might have been forgiven for remarking that not much important had happened. But slipped between these small-bore votes was an uncommon item, complete with a peculiar name: an application to Congress for an Article V convention.1

State Senator Gary Stubblefield, a Republican dairy farmer from western Arkansas, introduced the vote. “They give these speeches in Washington, D.C., and talk about the interests of the American people. You know what it’s really about in Washington, D.C.? It’s about maintaining power.… Congress has known this all along,” he remarked.2 What the country needed, he continued, was radical constitutional change—curtailing the national budget, diminishing federal regulatory power, and other proposals “to limit the power and jurisdiction of the federal government.” The states needed to neuter the federal government. Congress could not be trusted to do that on its own.

Article V—the Constitution’s oft-forgotten amendment provision—was created by the Framers for this very moment, Stubblefield argued. If two-thirds of the states apply for a convention, he explained, then one must be held. Congress has no say in the matter. It would be the first time such a convention had ever convened, but if not now, when? “This Article V is not a Democrat or Republican issue, it’s an American issue,” Stubblefield told his colleagues.3

Senator Joyce Elliott, a Democrat from Little Rock, took the floor to counter. “We have become so lazy about our democracy we look for shortcuts, and this is one of them.… I’m just as uncomfortable thinking about some kind of re-write in the Constitution because… we do not know what will happen at this convention.”4

Senator Linda Chesterfield, a Democrat also from Little Rock, agreed. “I fear that as we go down this road willy-nilly, we are putting together a convention that might not look like me, might not care about me, might not care about the diversity of America.… What will we do about making sure that this constitutional convention reflects the diversity that really is America?… I would say leave things alone.”5

But most of Elliot and Chesterfield’s colleagues brushed aside their concerns, voting 19–13 to submit Arkansas’s application to Congress. Four Republicans joined all Democrats in opposition.6

The vote in Montana two years later on February 10, 2021, was not so smooth. A convention advocacy organization had wined and dined Republican state senators, hoping to grease the skids before the legislature considered the application in public, reported Theresa Manzella, a Republican state senator from western Montana. As she later remarked, “By the time it got to the committee for the hearing, [convention advocates] had already developed a lot of support for the issue.”7 But when the application reached the state senate floor for a vote, tensions ran high.8

Manzella had sparked the drama. She had been an early supporter of a twenty-first-century constitutional convention, attending an Article V war game held in 2016. “I got there, it was really well done, and I got kinda excited,” she remarked.9 But now swayed by the opposition of the ultraconservative John Birch Society and the far-right militia group the Oath Keepers, Manzella decided to pull her support.10 A constitutional convention could run away, she believed, meaning it could become uncontrollable and propose radical changes to our constitutional system.

“Show me where it says that the states will control a convention,” she emphatically asked her colleagues on the senate floor. “Show me where it says [that] in Article V.”11 Even convention proponents are “conflicted in the information they’ve put out,” she argued. “They’re making the rules up as they go.”12

In retaliation for her stance, a convention advocacy organization run by the founder of the Tea Party Patriots, Mark Meckler, launched an aggressive smear campaign to silence her. “I have been targeted by them,” Manzella remarked on the senate floor.13 “They have cherry-picked my quotes, they have taken them out of context and they have compared me to Hillary Clinton and George Soros.”14

Manzella, continuing, revealed that she had written a letter resigning from the legislature the night before the vote because of the harassment, unsure whether she would feel moved to submit it. “I think you need to know that,” she told her colleagues on the senate floor, many avoiding eye contact with her.15 “I have never felt more disrespected as a committee member and a human being than I have felt in association with this bill.”16

After her speech, the application was voted down twenty-six to twenty-four, with six other Republicans and all Democrats joining Manzella in opposition.17 Reflecting on the vote, Manzella later remarked, “Their approach has been to sicken the people against you.… Sadly many of them are aggressive and hateful and that’s sad. That’s really sad. I feel betrayed by the people that promote [a convention].”18

Activists issued a chilling statement following the loss: “The 26–24 defeat is a setback for our team in Montana, but we are not discouraged. Why? Because we understand their [sic] is no other peaceful option… to rein in an out-of-control federal government.”19

*   *   *

“A Live Weapon in Our Hands”

Stubblefield’s success in Arkansas and Manzella’s decisive negative vote in Montana are just two episodes in a larger alarming story. Over the last two decades, a hushed effort to hold a convention under the Constitution’s amendment provision—the nation’s first ever—has inched through statehouses. And employing a dubious legal theory advanced by leading politicians, some now argue they only need to enlist a small handful of additional states to trigger the convening.

A convention would be a watershed moment in American history. Just like James Madison, Alexander Hamilton, and Benjamin Franklin in Philadelphia over two centuries ago, delegates would exercise almost unfettered authority to draft amendments that would change the contours of our fundamental law and civic life. Every contentious political and social issue could be on the table, creating or retiring constitutional rights and freedoms and restructuring basic elements of modern government. Unlike political skirmishes in Congress or presidential elections, constitutional amendments cut to the core of public life, silencing debate and quashing opposition. And as with all legal text, whoever holds the drafting pen exercises incredible power. The debates and proposed reforms of these new “framers” could shape American life for centuries.

The enormity of such an occasion is not lost on contemporary convention proponents. While many across the political spectrum have ignored their efforts, advocates have made their goals quite plain. As convention supporter Senator Rick Santorum remarked, “We’re planning on putting resources, people in place to get us to where the safety’s off and we have a live weapon in our hands.”20

The claim is both disturbing and peculiar. What is it about this august constitutional mechanism, one envisioned as a means for national reckoning and reformation, that allows one to claim it as a new “weapon”? How can one say with such certainty that the “live weapon” will be theirs? And—perhaps most important—does the weapon pose any real danger? Might it have been decommissioned and discarded long ago?

Hard-right activists have seized upon the seemingly arcane constitutional convention mechanism for two reasons. First, some argue that state legislatures—not the voters—would select convention delegates. Second, some also argue that at a convention each state would get one vote, making the convention radically more malapportioned than the Congress or the Electoral College (California’s 39.5 million citizens would have the same representation and vote as Wyoming’s 579,000).21 Neither of these two claims is a settled matter of law, and each has been the subject of intense debate among constitutional scholars for generations. Yet convention proponents embrace the uncertainty and praise its potential. Even if their extreme policies are rebuffed in Congress and at the polls, it is possible that activists might be able to use the amendment mechanism to foist their agenda on an unwitting majority.

In closed-door meetings with state legislators across the country, proponents explain these supposed realities with great excitement. Republicans have controlled a majority of state legislatures at multiple points during the last decades. These electoral fortunes, if continued, could make it possible for a faction to end-run a constitutional convening, pushing through radical proposals with no bipartisan support. “The number of states with Republican legislatures (governors have no role in the process) already approaches the necessary two-thirds,” one leading convention proponent wrote in the far-right publication the Epoch Times. “Surely a convention dominated by conservative state legislatures can draft amendments popular enough to be ratified by [three-quarters of the] states.”22

That final bit of mathematics—the three-quarters threshold for ratification—poses an uphill battle for changing the Constitution. But history makes clear that even proposing constitutional amendments can be a potent legal and political force. Once amendments are pending before the states for ratification, they can sit for decades until they receive sufficient support, upsetting state-level politics in the process. And even if they are never ratified, proposed amendments can have a profound effect on the development of legal doctrine and party agendas. One need only look to the Equal Rights Amendment, which was proposed in 1972 yet languished before the states for decades awaiting ratification, for a telling example. While the states sat on the proposal, the courts and political branches took the matter up themselves, expanding the Constitution’s guarantee of equal protection to further encompass sex. While the proposed amendment did not have an immediate legal effect, it had a profound impact on political and legal debate.

Far from focusing on the three-quarters bar, many proponents likely are thinking only about a lower one: the majority of states (twenty-six) possibly required to propose amendments in a convention. And convention proponents have fashioned a wish list of radical amendment proposals that might clear such a lower threshold: new state authority to veto federal laws, onerous federal spending limitations that would eviscerate most national policy and imperil national defense, and a complete restructuring of the country’s lawmaking and regulatory powers. Other topics, even more radical ones, are likely in the wings. With the math possibly on their side, many activists and their deep-pocketed funders are betting that it is preferable to lead the charge than catch up from behind.

Despite convention proponents’ claims of legal certainty, the most important questions about how a convening held under Article V would be called and how it would function are unsettled. The Framers left no rules. In this uncertainty lies great danger and, possibly, great power. Those who act first—achieving the requisite number of state applications to call a convention or convincing Congress or the courts that the threshold has been met using dubious counting methods—gain the advantage of creating the rules for the process. With a decades-long head start and little opposition, proponents have thrust ahead into this vast constitutional void, creating robust advocacy networks and marshaling commentators to craft legal theories favorable to their interests, oftentimes out of near thin air. Capitalizing on an era defined by win-at-all-costs partisan rancor, factious elements have trained their eyes on the ultimate prize: the Constitution itself.

¹

IMPORTANT EVENTS

Constitutional Amendments Discussed at Length Herein

See full text in Appendix.

INTRODUCTION

This book is about Article V, the Constitution’s amendment process. It examines the history and meaning of the mechanism, analyzes contemporary efforts to distort its procedure for factional gain, and proposes a path forward for reform. The book is thus, at its core, about legal machinery—constitutional bolts, nuts, and gears—and the impact of that machinery on modern life.

But it is also about an aspirational ideal and the need to rekindle that ideal. Article V enshrines one of the Founding generation’s most profound beliefs: that in a constitutional democracy, the People are empowered to return to first principles in a regular and controlled way to reform their government.

As the earliest Americans formed state constitutions during the Revolutionary War, many believed that constitutional amendment would be the cornerstone in a new American conception of democratic self-government. They heralded procedures for formal constitutional change as a means of “bloodless revolution” that would allow their communities to avoid the horrors of war and the tumult that defined the nation’s birth. It would be constitutional amendment, these early Americans believed, that would allow their experiment to endure.

When the Framers set out to draft the new national constitution a decade later, they built upon these early ideals, fashioning a completely new theory of constitutionalism and national union. The Framers put aside the Articles of Confederation, the nation’s first governing charter, and its ill-fated notion that the national government merely mediated loose relations between disparate states. The government would be cast in a new image, securing its authority not from the “Delegates of the States,” as did the failed Articles, but rather directly from “We the People” who would “ordain and establish” the Constitution.1

In few places was such a reframing of constitutional authority more profound than in the debates regarding constitutional change. The Framers shared those early American beliefs that constitutional amendment could provide the primary means for the People to ensure that the new nation would thrive. Article V was a middle way between the havoc of constant change and the dangers of stagnancy and ossification. As George Washington remarked before the document was ratified, the new Constitution was “not free from imperfections.”2 But the “People (for it is with them to Judge) can, as they will have the advantage of experience on their Side, decide with as much propriety on the alteration[s] and amendment[s] which are necessary,” he wrote. “I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us.”3

Throughout history, Americans have tried to take up Washington’s charge, calling upon Article V as a mechanism for political and social reform. Constitutional amendments have proved necessary to outlaw slavery and pursue racial and gender equality. So too have reformers outside the political establishment, like those in the women’s suffrage and Progressive Era movements, seized on Article V as a means for redress when those in power remained obstinate. In the critical moments when change was necessary, our forebears have often looked to the amendment process for renewal. And many of these amendments have paved the way for the celebrated (and sometimes detested) advances in American freedom and equality. The right to marry, to speak freely, to worship according to one’s conscience, to be free from racial discrimination, and to have bodily autonomy all find genesis in the amendments and contemporary meaning in their judicial elaboration.

This is perhaps why American public debate about the Constitution is often focused squarely on the document’s additions rather than its initial grand articles. As one recent poll found, only 51 percent of Americans could name the federal government’s three branches (legislative, judicial, and executive). But four out of five could name at least one of the First Amendment’s five freedoms (speech, religion, press, assembly, and petition).4 Most of the acclaimed rights advances of the last century find their legal roots in the Fourteenth Amendment. Raise the Second Amendment at Thanksgiving dinner—should you be so bold—and someone is bound to have a strong opinion. So too are other amendments keystones in modern life, including the Fourth (regulating police search and seizure power), the Seventeenth (direct election of senators), the Nineteenth (women’s vote), or the Twenty-Sixth (eighteen-year-old vote). The amendments, and the Washingtonian ideal of national reformation they represent, have continued to captivate the American constitutional imagination.

An Unsettled Article V

Yet over the last two centuries, Article V—the machinery of formal constitutional change—has often been seen as an afterthought. A dilemma has arisen with the passage of time as lived experience has failed to attain the aspirations of the Founding.

Ours is the world’s oldest functioning written national constitution, yet it is also one of the least changed. Although more than eleven thousand amendments have been proposed in Congress, only thirty-three have been sent to the states for approval and twenty-seven ultimately ratified. And a convention has never been held under Article V, despite the submission of at least 445 applications by state legislatures since 1789.5 While we celebrate those twenty-seven great moments of constitutional reformation, formal constitutional change has been the exception rather than a middle-way norm.

How can one explain this divergence between Founding ideals and historical practice? The common response is that the procedure is just too hard. Article V establishes an arduous path, requiring a supermajority of either state legislatures or both houses of Congress to propose amendments and an even larger supermajority of either state legislatures or state conventions to ratify. Many policy makers and scholars today argue that this is Article V’s fatal flaw—its standards are too high to have any modern power. Indeed, the mechanism is so burdensome that some have come to consider it as almost dead and certainly not worth much attention. Article V might be printed in the Constitution, the thinking goes, but it is not usable in practice.

These onerous supermajority requirements no doubt contribute in large part to the paucity of amendments. They make the road to reform hard and long. But they do not make amendment impossible. History teaches that at times—and often to the surprise of many—Article V has been both workable and exceptionally powerful, taking quick hold in the political climate.

The majority of the twenty-seven amendments were ratified during a few short moments of amendment fervor: the Bill of Rights just following ratification (ten between 1789 and 1791); the amendments of the “Second Founding,” which outlawed slavery and guaranteed equal citizenship for African Americans following the Civil War (three between 1865 and 1870); the Progressive Era amendments, which brought much-needed reform to Washington (four between 1913 and 1920); and the mid-twentieth-century reform period (four between 1961 and 1971). Yet outside these moments of rapid constitutional movement, amendments have been exceptionally rare: only six over the intervening 204 years.

This history offers a different conclusion regarding the nature of Article V. Rather than dead or useless, the mechanism might merely be sleeping—a giant waiting to be awakened. As James Madison wrote in Federalist No. 49, the amendment mechanism is a “constitutional road to the decision of the people… marked out and kept open for certain great and extraordinary occasions.”

Article V remains a peculiar, unsettled element of the American constitutional structure. The provision is of foundational importance but is often ignored in public debates about constitutional change. So too does much of its procedure remain opaque. As Madison remarked before the 1787 Convention had even adjourned, Article V’s convention route was flawed due to insufficient “constitutional regulations” dictating how it should work.6 And as the following chapters detail, the provision has always suffered from inherent tensions, the result of a compromise between competing theories of constitutional change and popular autonomy. Where Washington and his colleagues envisioned constitutional amendment as an established, certain means to ensure the Constitution’s vitality, over two centuries of lived experience have left more questions than settled answers.

Twin Jeopardies

Despite these structural uncertainties, the Founding generation’s noble aim to provide a means for peaceful, popular constitutional change remains. This book is an attempt to revive these aspirations and Washington’s middle way, to spark public discussion of both the dangers and possibilities of formal constitutional amendment and a reevaluation of the legal mechanism that provides for such change.

For generations, scholars, policy leaders, and reformers have wrestled with Article V, attempting to add structure to its ill-formed procedures and fashion political environments that might guide public debate toward the high ideals of constitutional reform. Many academic articles have been written, draft revisions proposed, and bills introduced. These efforts have yielded few positive results. But recent events have rekindled the need for such debate and reform.

The Constitution sits in a precarious moment, confronted by twin jeopardies. The first jeopardy is a new effort, spearheaded and funded by far-right activists, to awaken Article V’s convention mechanism and capitalize on its uncertain procedure almost entirely for factional gain. This is a particularly troubling danger, one rife with unanswered legal questions and animated by the divisive hyperpartisan sentiments of our era. This threat must be engaged with a cool head, its profound legal errors discounted, and its path blocked.

But in quashing the contemporary convention threat, Americans must address the Constitution’s second profound jeopardy: the danger of stagnancy and ossification.

The limited record of constitutional amendment—just twenty-seven ratified in over two centuries—has caused many across successive generations to accept that Article V is useless. Even before ratification, many argued that the amendment mechanism would never work. Leading scholars and jurists in the nineteenth century echoed the same sentiment. So too do many policy and opinion leaders today believe that the amendment mechanism is fundamentally broken. The country will not, and indeed cannot, ever amend the Constitution again, they argue.