Convention-Phobia: As America Nears Its 250th Birthday, Facing the Unwarranted Fear of Constitutional Reform

The impending 250th anniversary of the Declaration of Independence seems like the perfect time to talk about our Constitution — its values, its strengths, its weaknesses, and, yes, even its potential amendment or revision. A national conversation on the state of our constitutional order, though, requires we avoid succumbing to convention-phobia — a fear that any talk of constitutional reform or a convention will automatically lead to an outcome unaligned with the public interest. It’s a fear Americans didn’t used to have. And it’s a fear we need to get over. Sadly, convention-phobia seems to be spreading.As reported by the New York Times, officials such as Congressman Jodey Arrington have resurfaced proposals to amend or revise the Constitution. Mr. Arrington and others should have a chance to fully explain their rationale for any amendments and alterations. Those opposed should, in turn, have a platform to contest those ideas. All of this should and could occur in a civil, open fashion. In short, we should use this moment to follow the model set by the Founders in debating the ratification of the Constitution.The Founders did not doubt their collective capacity to debate the adequacy of the Constitution and decide whether contemporary challenges warranted further amendments. Consider the nature of their public debates over the proposed Constitution: delegates to the Constitutional Convention at Philadelphia, farmers across the nation, merchants in myriad cities, and others engaged in open and thoughtful discussions about the ins and outs of the document. The Federalist Papers were just a small subset of a larger exchange of essays among Americans concerned about the future of the country. In addition to John Jay, Alexander Hamilton, and James Madison, many others penned articles setting forth the federalist perspective; a community of writers did the same with respect to anti-federalist views.We should heed their example. Instead, many of us will just read headlines and accept whatever view the authors wanted to pass on. The Times’s headline — “A Constitutional Convention? Some Democrats Fear It’s Coming” — primes readers to associate constitutional discourse with conservative aims and, by extension, to ignore, if not oppose, such conversations. It’s these sorts of headlines that give rise to convention-phobia. Below the byline, the authors persisted in slanted coverage intended to quash robust constitutional discourse. They warn that there are “almost no rules governing how such a constitutional convention would work.” They speculate that a convention may be populated by “lobbyists and special interests.” They quote partisan sources such as Erwin Chmerinsky to confirm that convention “fears” of Democrats are “very legitimate.”While it’s true that the Constitution leaves many details unaddressed in Article V, it’s not true that Americans lack the capacity to fill in the blanks. Absent from the Times coverage is any mention of the fact that Americans have long demonstrated a capacity to responsibly reform and revise fundamental legal documents. The article leaves out the fact that since the 1770s there have been more than 250 state constitutional conventions. In many such instances, residents of those states had to craft novel rules and procedures. Those Americans figured it out. So can we.The Times reporters also chose to ignore the mountains of legal scholarship on how a federal constitutional convention could work. They additionally omitted important efforts like the 2024 Model Constitutional Convention hosted by Center for Constitutional Design at Arizona State University in which students from around the country participated in a mock convention. Analysis of scholarship and details on emerging efforts for public engagement with big constitutional questions would increase our collective resiliency to unproductive allegations that we’re not to be trusted with our own governing document. This is unfortunately not a new phenomenon. Stories that focus on flags flown by wives of justices more so than the content of the Supreme Court’s opinions trivialize our politics and infantilize our populace. It is hard to imagine our Constitution, as is, can preside over another 250 years of American innovation and leadership. Now’s the time to at once celebrate the spirit and letter of that document while also critically analyzing whether it still furthers the values that motivated our Founders and sustains us today. We can and should remember, as pointed out by Professor Edward Corwin, that “the one power known to the Constitution which clearly is not limited by it is that which ordains it — in other words, the original, inalienable power of the people of the United States to determine their own political future.”This article was originally published by RealClearPolicy and made available via RealClearWire.

Convention-Phobia: As America Nears Its 250th Birthday, Facing the Unwarranted Fear of Constitutional Reform

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