Con-Con Agenda out in the Open: Single-Issue Constitutional Conventions Have Been Repeatedly Proposed as the Answer to Solve Federal Failings. Now Convention Proponents Are Issuing Calls for Wholesale Remaking of the Constitution

Article excerpt

The United States has not had a constitutional convention since 1787, when the Founding Fathers decided to replace the Articles of Confederation, the then-existing constitution, with the Constitution we have today. In the past 219 years, our Constitution has since been amended 27 times. In each of those cases, the proposed amendment was approved via a process of obtaining a two-thirds majority vote of both houses of Congress and then ratification by three-fourths of the states--either by the state legislatures or by special state ratifying conventions, the mode of ratification being determined by Congress.

This process, beginning with Congress and ending with the states, is one of two basic approaches authorized by the Constitution's Article V for amending the Constitution. The other approach, entailing a constitutional convention, is initiated by the states. Under Article V, Congress must call a constitutional convention upon receiving applications from two-thirds of the states; any amendments drafted by such a convention would then be sent back to the state legislatures--or to special state conventions--for ratification.

Over the years, states have petitioned Congress to call a convention for various specified purposes. As recently as 1983, the country came close to holding the second constitutional convention in its history when Missouri became the 32nd state (34 were needed) petitioning Congress to call a convention for the stated purpose of drafting an amendment to balance the federal budget. Since that time, however, eight of the 32 states have withdrawn their applications for a "balanced budget" convention.

Proponents of calling a convention for specific purposes have argued that a convention could be limited to those purposes. Yet our first constitutional convention established a precedent for a runaway convention by ignoring its mandate to revise the Articles of Confederation in order to draft a new constitution. It even changed the ratification process from unanimous approval by the states to a three-fourths majority. And though the result ended up being a good thing, it is almost certain that the result would be very different if a constitutional convention were to draft a new constitution today.

Back in the 1980s when the drive for a balanced-budget amendment had peaked and then begun to ebb, fears that a convention might be used to make major changes to our governmental system, as opposed to simply adding a specified amendment, were considered overblown if not unfounded. But in more recent years a growing number of convention advocates have begun publicly proposing just that.

So-called Savants

Consider, for example, Sanford Levinson, professor of law at the University of Texas Law School, who argues for a modern-day constitutional convention in his book Our Undemocratic Constitution, published earlier this year. Enamored with pure democracy, Prof. Levinson criticizes the Constitution for being undemocratic. He stands in stark contrast to James Madison, who expressed in The Federalist, No. 49, his fears of runaway public passions, which would jeopardize the stability and good order of government.

Levinson's targets for amending the Constitution include the undemocratic Senate, where the most populous states have the same number of senators as the least populous ones; the electoral college; the tyrannical exercise of executive power; and life tenure for federal judges. He acknowledges that the revisions he has in mind strike at the heart of the very nature of our republican form of government:

   We the people should have the opportunity
   to decide, in a new convention,
   what conception of the
   presidency is most congruent with
   our sense of republican government.
   Or ... we might decide that adherence
   to republican government is
   naive and even dangerous to our
   modern world. …