Calls For a Constitutional Convention Heating Up in the States

(Updated below)

We're hearing from our ACLU affiliates about a new trend in state legislatures: proposals to call for the convening of a constitutional convention. This would be a fairly radical step: although clearly provided for in the Constitution, a constitutional convention has never been convened in the history of our republic.

Many of the proposals are centered on attempts to alter the Constitution to require a federal balanced budget amendment, and in some cases to impose term limits on federal officeholders. So far we’ve heard of such proposals in Arkansas, Idaho, Nebraska, Virginia, and West Virginia. Apparently, these bills are based on a common model bill circulated by ALEC, the conservative-leaning American Legislative Exchange Council. From the other side of the political spectrum, legislatures in several states including California, Illinois, and Vermont have already called for a constitutional convention to address campaign finance issues.

Under Article V of the Constitution, there are two methods by which the Constitution can be changed. The first, which has been repeated 27 times, requires approval of a specific amendment by two-thirds of the House and Senate and three-fourths of the states. The other, never-before-used method is the convening of a convention, which Congress “shall call” upon “the application of the legislatures of two thirds of the states.” Any changes to the Constitution passed by that constitutional convention must then be approved by three fourths of the states.

As someone who works on new technology and the lightning-fast succession of issues that it raises, I sometimes fantasize about going hog-wild at a constitutional convention to clarify our right of privacy and other fundamental protections that have not kept up in the digital age. The Fourth Amendment is a fine expression of the basic need for privacy in a democracy, but the courts move slowly in adapting it to modern conditions. It took more than 40 years, for example, for the Supreme Court to apply it to the technology of the telephone — and its extension to email and other digital-age mediums is proceeding painfully slowly.

After all, our Founders probably never imagined that we would still be relying so heavily on their original document over 200 years later. While some, like Madison, favored caution, others — Thomas Jefferson in particular — scorned excessive reverence for the things we inherit from prior generations. Jefferson, for example, wrote that “A little rebellion, now and then, is a good thing, and as necessary in the political world as in the physical.” He suggested it would be a bad sign for liberty if there weren't a rebellion every twenty years or so, even though such rebellions might be misguided. Furthermore, he argued in 1789, “No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.” After his presidency he wrote,

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched; who ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.... Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs.... Each generation is as independent as the one preceding, as that was of all which had gone before.

In the end, however, the problem is that there is too little reason to believe that such a convention would not result in a weakening of civil liberties, perhaps disastrously so. There are no standards to govern how a constitutional convention would be convened and conducted, so there is no way to ensure that the delegates to the convention are representative, and that the rules governing the convention’s conduct are fair. Most significantly, perhaps, there is no way to ensure that the convention would confine itself to whatever subject inspired its creation, without veering off into dangerously impetuous rewriting of our nation’s foundational legal document.

And there is too much evidence that contemporary policymakers have forgotten the wisdom of the Founders, particularly when it comes to the need for checks and balances on government power. Congress, for example, has allowed the NSA and other national security agencies to balloon to giant size while failing to create oversight mechanisms anything close to proportional to those agencies' powers. It has allowed executive branch secrecy to spiral out of control and be used repeatedly to protect abuses of power. And our lawmakers have enacted civil asset forfeiture laws that fail obvious tests of attention to incentive structures and institutional counterbalances. Where our Founders had a sophisticated and healthy distrust of power — extending as we've seen in Jefferson's case even to the power of “reverence” — such distrust is today too often forgotten by supporters of our giant security state, and ironically we must rely on just such reverence to obtain what protections we can.

These are some of the reasons why the ACLU as an organization has a formal policy opposing the calling of a constitutional convention. Jefferson warned of “lethargy, the forerunner of death to the public liberty,” and thought it was healthy that rulers be “warned from time to time that their people preserve the spirit of resistance.” As frightening a prospect as a convention gathered to monkey around with our Constitution is, part of me does like the feisty “spirit of liberty” that such calls represent. But I want that spirit of liberty to find outlet through efforts in Congress and our courts to rein in the national security state.

Update (2/4/15):

The Washington Post has published an article on this trend, reporting that three states have actually passed resolutions calling for the convention: Alaska, Georgia, and Florida, and that seventeen others are considering legislation.

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Anonymous

The purpose of the Constitution was to limit government. But given recent trends that have shown that it is often simply ignored, I'm not exactly sure what good a CC would do.

Anonymous

With as polarized as the nation is right now as constitutional convention would more likely end in disaster. This would especially be true if any entity that doesn't have the people's interests at heart got its way.

Anonymous

this is cool. from kaitlynk.

Anonymous

it is a MUST for the salvation of this country

Anonymous

I've been a steadfast supporter of the ACLU, but it's unfortunate to see that the organization has been able to reconcile their commitment to social and economic justice with the Constitution, but has been unable to do so with decisions like Citizens United and the need for an Article V Convention to overturn them. On your very own site, you quote MLK as saying, “What does it profit a man to be able to eat at an integrated lunch counter if he doesn’t have enough money to buy a hamburger?” One could easily replace those phrases with "Congress" and "our legislators" to see the hypocrisy. Without recognizing that unlimited private money in campaigns creates undue distortion of the People's will - and the reality that public funding will NEVER be able to compete without reasonable caps on donations and expenditures to election-related organizations, only igniting a never-ending upward arms race - the goals of the ACLU will never be achieved as thoroughly and quickly as they could be and should be.

States that have passed motions calling for an Article V Convention have limited the scope what such a convention could address, meaning fears of a "runaway convention" are unfounded. I'm all for the protection of our civil liberties, but supporting the decision of Citizens United (as well as Buckley v. Valeo, SpeechNOW.org v. FEC, and McCutcheon v. FEC) is a failure to recognize that poor people plain and simply cannot buy the same sort of access to our legislators that the donor class can.

I look forward to the day that the ACLU recognizes this and supports calls for an Article V Convention limited to overturning these disastrous decisions so that we can redirect our representatives to the will of the People regardless of wealth or status.

Anonymous

I've been a steadfast supporter of the ACLU, but it's unfortunate to see that the organization has been able to reconcile their commitment to social and economic justice with the Constitution, but has been unable to do so with decisions like Citizens United and the need for an Article V Convention to overturn them. On your very own site, you quote MLK as saying, “What does it profit a man to be able to eat at an integrated lunch counter if he doesn’t have enough money to buy a hamburger?” One could easily replace those phrases with "Congress" and "our legislators" to see the hypocrisy. Without recognizing that unlimited private money in campaigns creates undue distortion of the People's will - and the reality that public funding will NEVER be able to compete without reasonable caps on donations and expenditures to election-related organizations, only igniting a never-ending upward arms race - the goals of the ACLU will never be achieved as thoroughly and quickly as they could be and should be.

States that have passed motions calling for an Article V Convention have limited the scope what such a convention could address, meaning fears of a "runaway convention" are unfounded. I'm all for the protection of our civil liberties, but supporting the decision of Citizens United (as well as Buckley v. Valeo, SpeechNOW.org v. FEC, and McCutcheon v. FEC) is a failure to recognize that poor people plain and simply cannot buy the same sort of access to our legislators that the donor class can.

I look forward to the day that the ACLU recognizes this and supports calls for an Article V Convention limited to overturning these disastrous decisions so that we can redirect our representatives to the will of the People regardless of wealth or status.

MJ Anon

I've been a steadfast supporter of the ACLU, but it's unfortunate to see that the organization has been able to reconcile their commitment to social and economic justice with the Constitution, but has been unable to do so with decisions like Citizens United and the need for an Article V Convention to overturn them. On your very own site, you quote MLK as saying, “What does it profit a man to be able to eat at an integrated lunch counter if he doesn’t have enough money to buy a hamburger?” One could easily replace those phrases with "Congress" and "our legislators" to see the hypocrisy. Without recognizing that unlimited private money in campaigns creates undue distortion of the People's will - and the reality that public funding will NEVER be able to compete without reasonable caps on donations and expenditures to election-related organizations, only igniting a never-ending upward arms race - the goals of the ACLU will never be achieved as thoroughly and quickly as they could be and should be.

States that have passed motions calling for an Article V Convention have limited the scope what such a convention could address, meaning fears of a "runaway convention" are unfounded. I'm all for the protection of our civil liberties, but supporting the decision of Citizens United (as well as Buckley v. Valeo, SpeechNOW.org v. FEC, and McCutcheon v. FEC) is a failure to recognize that poor people plain and simply cannot buy the same sort of access to our legislators that the donor class can.

I look forward to the day that the ACLU recognizes this and supports calls for an Article V Convention limited to overturning these disastrous decisions so that we can redirect our representatives to the will of the People regardless of wealth or status.

Anonymous

The need for a Constitutional Convention is ever growing. Between the constant infringemnt of our privacy rights in the name of Homeland Security, constant political deadlock due to partisan squables, and the allowance of large corporate funding in politics; our government has shitfted from a democracy for the people, to a democracy for the elite and large corporations.

While yes, there is the fear that something of this magnitude could turn into a runaway convention and that many of the rights that our constitution does provide. I have faith that our country has evolved enough to understand the need for civil liberties, and that a Constitutional Convention would be as successful this time around as it was when the Articles of Confederation we scrapped and the current United States Constitution written.

Anonymous

I don't see how a constitutional convention of the states could turn into a runaway convention. With 3/4 of the states having to approve anything that results, the most that will come of it is a balanced budget amendment and perhaps a return of some state sovereignty that has been eroded by federal bureaucracy.

Anonymous

I agree.

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