The U.S. Constitution provides two methods for its own amendment. We’re familiar with the first: Amendments may be proposed and approved by two-thirds of the House and Senate and then ratified by three-fourths of the states. This method has been used successfully 27 times.
The second method has never been used. Article V stipulates that upon the “Application of the Legislatures of two thirds of the several States,” Congress is obliged to call “a Convention for proposing Amendments.”
The states have never forced Congress to convene an assembly to amend the Constitution, though many legislatures and individual interests have tried. For example, the Florida-based Balanced Budget Amendment Task Force claims to have 28 state legislatures on board, needing only six to reach the 34 required to force a convention.
And last year a writer for the Federalist Society claimed that — depending on how you count — 33 states have called for a constitutional convention, just one away from the required threshold.
As a rule, efforts to call a convention originate with the political right and they tend to focus on single issues. But others have argued for a constitutional convention open to all amendments — in other words, a potential complete rewrite. What could go wrong?
Here’s an example of why this is a bad idea: Several years ago, Tex. Gov. Greg Abbott issued a 92-page document that hopes to improve upon the Constitution in ways that reflect his conservative perspective.
The so-called “Texas Plan” includes drastic provisions, such as ones that would allow a two-thirds majority of the states to overrule a Supreme Court decision or that would prohibit Congress from regulating any activity that takes place wholly within a state. Any?
Abbott focuses a lot of attention on the “Spending Clause.” In 1796, he notes, two-thirds of Savannah, Ga., was consumed by fire. Many members of the fourth Congress opposed any federal aid to Savannah, Abbott says, because such a “bailout” was not listed among Congress’s enumerated powers. Aid for Savannah was voted down, 55-24.
But times have changed. Since Hurricane Harvey hit in 2017, Texas has received more than $14 billion in federal aid, with billions more in the pipeline. Gov. Abbott hasn’t turned any of this money down.
The “Texas Plan” reminds us of the extreme caution that we should exercise with any attempt to amend or rewrite the Constitution, especially by means of state-initiated constitutional conventions, which, with no constitutional guidance, could quickly turn into free-for-alls of ill-considered ideology, hypocrisy, impracticality and unintended consequences.
The Constitution is a splendid document, but its chief lesson is how hard it is to create a founding document that will serve a nation well for decades and even centuries.
Some of the Constitution’s worst original flaws have been amended; slavery has been eliminated and women have the right to vote. But anachronisms remain. The Second Amendment and Section 3 of Article I were probably good ideas then, but they haven’t translated well into the modern world.
Section 3 is responsible for allotting two senators to every state, no matter how big or small. It was the kind of compromise that made the Constitution possible. But it would have been as challenging for the founders to imagine the disproportionate representation that would result in the Senate between, say, California and Wyoming.
So the founders did not bestow on us a perfect document. But they may have hoped that we would be inspired by the Constitution’s aspirations. The overarching goals are Union, Justice, Tranquility, Welfare, the Blessings of Liberty. These aspirations should enable us to live with the flaws in the document.
The Constitution’s weaknesses do not prevent us from striving toward its best aspirations. Doing so will serve us better than trying to amend its weaknesses, especially in a constitutional convention.
John M. Crisp lives in Georgetown, Texas, and can be reached at firstname.lastname@example.org