The Constitutional Convention Quarrel

The same Democrats who’ve been carrying on about the awfulness of the parchment are now up in arms against the idea of a convention of the states to consider amending it.

Via Wikimedia Commons
Daumier, 'A Literary Discussion in the Second Tier,' detail, 1864. Via Wikimedia Commons

What a strange situation is shaping up in respect of the national quarrel on the Constitution. The same Democrats who’ve been carrying on about the awfulness of the parchment are now up in arms against the idea of a convention of the states to consider amending it. This contradiction emerges in a Times report about Senator Feingold’s new book warning against a convention similar to the one that wrote the original document.

The Sun favors a convention of the states, as we noted when Mark Levin brought out his book calling for such a parley, “The Liberty Amendments.” A convention of the states is a different  path to revising the Constitution than was taken in respect of the 27 amendments ordained to date. These were voted by Congress and then sent out for ratification by the states, three-fourths of which gave their approval.

The same three-fourths of states would need to ratify any amendments proposed by a convention of the states, as outlined in Article V of the constitution. A convention of the states, though, would be launched on the application to Congress “of the Legislatures of two-thirds of the several states.” Congress must then call a “Convention for proposing Amendments.” All ratified amendments become part of the Constitution.

The Times depicts the idea as a conservative conspiracy. “Elements on the right have for years been waging a quiet but concerted campaign to convene a gathering,” the Gray Lady grouses. Mr. Feingold frets that the absence of rules from the Founders on running such a meeting could lead to a “runaway” convention that tries to “restrict federal power governing the environment, education and health care, among other issues.”

This isn’t entirely a Feingoldian fantasty. The rules of the convention would matter. At Philadelphia in 1787, each state had one vote, no matter how many delegates it sent to the sitdown. What might emerge from a convention were the rules — which are not laid out in the Constitution — changed to, say, weight each state’s vote to its population? The safeguard is that three-quarters of the states would still be needed to ratify results.

The fact is, it would be hard for either side to hijack a convention. Nor is it just conservatives calling for a Convention of the States. Some distinguished leftists — Sanford Levinson of the University of Texas for one — are also calling for such a powwow.  Fears of a runaway convention are “much exaggerated,” he tells the Sun, since delegates to such a parley “would be responding to,” and constrained by, “ordinary political incentives.” 

The Times’ hardest-working columnist, Michelle Goldberg, wrote her first column on Mr. Levinson’s ideas. She urges Americans to “transform the ways we choose our leaders,” and says “absent reform, our system could eventually face a legitimacy crisis.” She rues the Constitution’s “small-state bias.” Ms. Goldberg says that this problem, if it is one, has worsened as the “population discrepancy” between the smallest and largest states has grown.

Yet on the Senate, the Constitution presents a brick wall. For equal representation of the states in the upper house is the one part of the Constitution that can’t be amended. Here’s how the Constitution puts it: “[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” One could argue that a degree of “small-state bias” is part of the constitutional genius, as befits a union of sovereign states.

Mark Levin, by contrast, wants a convention “to rebalance the constitutional structure for the purpose of restoring our founding principles.” His “Liberty Amendments” include term limits for members of Congress and the Supreme Court; a prohibition on federal budget deficits; the restoration of the power of state legislatures to select senators — and giving voters authority to recall wayward elected officials.

Mr. Feingold may not find all such propositions congenial (nor do we). He fears a convention of states “could gut our Constitution.” At least he still believes in the idea of the Constitution, even if he fears it’s “in jeopardy.” That’s a refreshing change from the Yale and Harvard professors who wrote in the Times of their hope to “reclaim America from constitutionalism.” Such talk strikes us as more worrisome than any prospective convention of the states.

The New York Sun

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