Second Constitutional Convention of the United States
The Second Constitutional Convention of the United States is a proposal made by some scholars and activists from both left and right for a substantive effort to reform politics in the United States by means of overhauling the federal frame of government, the Constitution. Article V of the Constitution provides two ways to propose amendments to the frame of government: By a two-thirds vote of each house of Congress, or by a convention that has been requested by two-thirds of the states. Either way, three-fourths of the states (now 38) must ratify the amendment.
There have been scattered calls at the state level for a second convention throughout the nation's history. In 1943, a lawyer for Chicago-based Marshall Field's department store as well as Time Inc. wrote a book A Time for Change calling for a convention to "streamline the United States government." In the late 1960s, Senator Everett Dirksen called for a second constitutional convention by appealing to state legislatures to summon one. There have been acts by state legislatures urging Congress to press for constitutional amendments to deal with apportionment issues as well as the balanced budget amendment.
A report in the Pittsburgh Post-Gazette in 2011 described the movement for a second convention as gaining "traction" in public debate, and wrote that "concern over a seemingly dysfunctional climate in Washington and issues ranging from the national debt to the overwhelming influence of money in politics have spawned calls for fundamental change in the document that guides the nation's government." For several years, state lawmakers approved no Article V Convention calls at all, and even went so far as to adopt resolutions rescinding their prior such calls. However, in 2011, legislators in Alabama, Louisiana, and North Dakota (in two instances) approved resolutions applying for an Article V Convention. All three of these states had adopted rescissions in 1988, 1990, and 2001, respectively, but then reversed course in 2011. The very same was true in 2012 with New Hampshire lawmakers who had just adopted a resolution to rescind previous convention applications as recently as 2010.
Many states have called for an Article V Convention to discuss adding a Balanced Budget Amendment to the Federal Constitution. To summon such a convention for this amendment, 34 states need to apply. In 2013, the number of states making the application is unclear; it may be either 33 or 20, and the tally may depend on rulings about whether past state applications may or may not be rescinded. In 1983, Missouri applied; in 2013, Ohio applied. It may take years before a sufficient number of state legislatures apply; if such a convention happened, the Balanced Budget Amendment would happen if 38 states ratified the amendment.
At the congressional level, exactly one month to the date before his death in a February 14, 1975, plane crash, the late U.S. Representative Jerry L. Pettis, Republican of California, went so far as to introduce House Concurrent Resolution No. 28 which—had it been approved by both houses of Congress—would have triggered a national convention to have been assembled in Philadelphia, Pennsylvania, for the purpose of proposing amendments to the federal Constitution. Pettis' concurrent resolution would have stipulated that each state would have been entitled to send as many delegates to that convention as it had Senators and Representatives in Congress and that such delegates would be selected in the manner designated by the legislature of such state. On August 5, 1977, former U.S. Representative Norman F. Lent Republican of New York introduced House Concurrent Resolution No. 340, which was quite similar to Pettis' 1975 H.Con.Res. 28. Lent's H.Con.Res. 340 received no further consideration than to be referred to the House's Committee on the Judiciary.
A report by analyst David Gergen in CNN suggested that despite serious differences between left-leaning Occupy movements and the right-leaning Tea Party movements, there was considerable agreement on both sides that money plays "far too large a role in politics." Scholars such as Richard Labunski, Sanford Levinson, Lawrence Lessig, Glenn Reynolds, Larry Sabato, newspaper columnist William Safire, and activists such as John Booth of the Dallas movement RestoringFreedom.org have called for constitutional changes that would curb the dominant role of money in politics. Scholar Stein Ringen in his book Nation of Devils suggested that only a "total overhaul" of the constitution could fix the "years of accumulated damage and dysfunction," according to a report in the Economist in 2013. French journalist Jean-Philippe Immarigeon suggested in Harper's magazine that the "nearly 230-year-old constitution stretched past the limits of its usefulness". A report in USA Today suggested that 17 of 34 states have petitioned Congress for a convention to deal with the issue of a balanced budget amendment. A report in CNN suggested that 30 state legislatures are considering resolutions either calling for a constitutional convention or else proposing changes to the Constitution. David O. Stewart suggested that possible topics for Constitutional amendments might include the elimination of the electoral college and switching to direct election of the president, a ban on procedures in the House or Senate which require a supermajority vote as a means to prevent minorities or powerful Senators from blocking legislation, term limits for congresspersons, and a balanced budget amendment.
While in 2011, the number of voices calling for such a Constitutional Convention were small in number, there were reports of state legislatures leaning in the direction of substantive constitutional reform, based in part on widespread dissatisfaction with the American political process at the national level. In contrast, however, analyst David O. Stewart, writing in the Huffington Post, suggested that most Americans would "recoil from the disruption" of a possible second Constitution.
Numerous questions surround the issue of how a convention might happen, partially because a second one has never happened in the nation's history. There is no consensus on how such a convention may be organized, led, or who may be selected to be in such a body.
Because there has not been a constitutional convention since 1787, efforts have been clouded by unresolved legal questions: Do the calls for a convention have to happen at the same time? Can a convention be limited to just one topic? What if Congress simply refuses to call a convention? Scholars are split on all those issues.
While there is no political precedent for such a convention, some scholars have noted that the original 1787 Convention, itself, was the first precedent, since it had only been authorized to amend the Articles of Confederation and not to draw up an entirely original and new Constitution which it did secretly during the summer of 1787. According to The New York Times, the action by the Founding Fathers set up a precedent that could be used today. But, since 1787, there has not been one overall constitutional convention. All 27 amendments to the Constitution, except the 21st, were first approved by two thirds of both the House and Senate and then approved by three fourths of the several states.
However, "in the context of the Seventeenth Amendment (making the Senate elected), ... the states came within one vote of calling for a convention, and the Congress quickly proposed the amendment the convention would have proposed."
It's far from clear how many of those calling for a constitutional convention want to completely replace the current constitution vs. merely proposing one or more amendments, which would still require separate approval by three fourths of the several states.
Scope of a possible convention
There have been calls for a second convention based on a single issue such as the Balanced Budget Amendment. According to one count, 17 of 34 states have petitioned Congress for a "convention to propose a balanced budget amendment." But Congress has been reluctant to "impose limitations on its spending and borrowing and taxing powers", according to anti-tax activist David Biddulph. Law professor Michael Stokes Paulsen suggested that such a convention would have the "power to propose anything it sees fit" and that calls for a convention to focus on only one issue "may not be valid", according to this view. According to Paulsen's count, 33 states have called for a general convention, although some of these calls have been pending "since the 19th century."
According to a New York Times report, different groups would be nervous that a convention summoned to address only one issue might propose a wholesale revision of the entire Constitution, possibly limiting "provisions they hold dear." Such groups include the American Civil Liberties Union, the John Birch Society, the National Organization for Women, the Gun Owners Clubs of America and conservative advocate Phyllis Schlafly. Accordingly, they are opposed to the idea of a second convention. Lawrence Lessig countered that the requirement of having 38 states ratify any proposed revision––three-quarters of all state legislatures––meant that any extreme proposals would be blocked, since either 13 red or 13 blue states could block such a measure.
Constitutional law scholar Laurence Tribe noted that the language in the current Constitution about how to implement a second one is "dangerously vague", and that there is a possibility that the same interests that have corrupted Washington's politics[clarification needed] may have a hand in efforts to rewrite it. Politicians and scholars who are reluctant to have a second constitutional convention may insist that all 34 state petitions to Congress must have an identical wording or otherwise the petitions would be considered invalid.
But somebody at the convention said that "what if Congress is the problem – what do we do then?" So they set up an alternative path... that states can call on Congress to call a Convention. The convention, then, proposes the amendments, and those amendments have to pass by three fourths of the states. So, either way, thirty eight states have to ratify an amendment, but the sources of those amendments are different. One is inside, one is outside.
Lessig argued that the ordinary means of politics were not feasible to solve the problem affecting the United States government because the incentives corrupting politicians are so powerful. Lessig believes a convention is needed in view of Supreme Court decisions to eliminate most limits on campaign contributions. He quoted congressperson Jim Cooper from Tennessee who remarked that Congress had become a "Farm League for K Street" in the sense that congresspersons were focused on lucrative careers as lobbyists after serving in the Congress, and not on serving the public interest. He proposed that such a convention be populated by a random drawing of citizens' names as a way to keep special interests out of the process.
Constitutional scholar and University of Texas Law School professor Sanford Levinson wrote Our Undemocratic Constitution: Where the Constitution Goes Wrong and called for a "wholesale revision of our nation's founding document." Levinson wrote:
We ought to think about it almost literally every day, and then ask, 'Well, to what extent is government organized to realize the noble visions of the preamble?' That the preamble begins, 'We the people.' It's a notion of a people that can engage in self-determination.— Sanford Levinson, 2006
Tennessee law professor Glenn Reynolds, in a keynote speech at Harvard Law School, said the movement for a new convention was a reflection of having in many ways "the worst political class in our country's history."
Political scientist Larry Sabato believes a second convention is necessary since "piecemeal amendments" have not been working. Sabato argued that America needs a "grand meeting of clever and high-minded people to draw up a new, improved constitution better suited to the 21st century."
Fewer new constitutions are modeled along the lines of the American version, according to a study by David Law of Washington University. Supreme Court Justice Ruth Bader Ginsburg views the United States Constitution as more of a relic of the 18th century rather than as a model for new constitutions, and she suggested in 2014 that a nation seeking a new constitution might find a better model by examining the constitutions of South Africa (1997), the Canadian Charter of Rights and Freedoms (1982) and the European Convention on Human Rights (1950).
I would not look to the United States Constitution if I were drafting a constitution in the year 2012.
Current efforts to call a Second Constitutional Convention
There have been calls by the Occupy Wall Street and related Occupy movements to focus demands on an Article V convention. A political action committee called Wolf-PAC, headed by The Young Turks host Cenk Uygur, emerged from New York's Occupy movement; the PAC calls for a constitutional amendment to remove money from politics. In 2014, the states of Vermont, California, Illinois and New Jersey prompted by Wolf PAC, passed a resolution calling for a convention of the States to overturn the decision by the Supreme Court in Citizens United v. FEC.
Citizens for Self-Governance
A group called Citizens for Self-Governance (CSG) is actively engaged in an effort to call an Article V Convention. Through an initiative called Convention of States, CSG is seeking "to urge and empower state legislators to call a convention of states." CSG states that it initiated the Convention of States project "for the purpose of stopping the runaway power of the federal government." Mark Levin, Tom Coburn, Florida Senator Marco Rubio, and Governor Greg Abbott have publicly supported CSG's efforts to a call a second constitutional convention. Levin's book The Liberty Amendments details his plan for an Article V convention of states, and eleven proposed amendments.
- James O'Toole (December 12, 2011). "Constitutional convention call gains traction". Pittsburgh Post-Gazette. Retrieved 2011-12-14.
- Christopher Shea (November 2, 2011). "Time for a Constitutional Convention?". Wall Street Journal. Retrieved 2011-12-14.
- Gregory Korte (November 29, 2011). "Balanced budget amendment push sparks debate". USA Today. Retrieved 2011-12-14.
- MARVINE HOWE (February 24, 1993). "Alexander Hehmeyer, 82, Lawyer For the Family of Marshall Field". The New York Times. Retrieved 2011-12-23.
- "The Constitution: Ev's Amendment". Time Magazine. Aug 8, 1969. Retrieved 2011-12-23.
- THEO LIPPMAN JR. (May 25, 1992). "Just Memorial Day. It is also the 215th...". Baltimore Sun. Retrieved 2011-12-23.
- Robert Higgs, Northeast Ohio Media Group, November 25, 2013, House and Senate leaders to tout need for balanced budget amendment to U.S. Constitution, Accessed Dec. 29, 2013
- Terry Ganey, January 23, 2010, Columbia Daily Tribune, Legislators push balanced budget: U.S. deficits spur amendment call, Accessed Dec. 29, 2013, "...Legislatures have petitioned Congress to adopt an amendment in the past. Kelly recalled voting for one in 1983...."
- Jeremy Pelzer, Northeast Ohio Media Group, November 22, 2013, Ohio lawmakers join in push for national convention on balanced-budget amendment, Accessed Dec. 29, 2013, "...under Article V of the U.S. Constitution, such a convention would be held if 34 state legislatures ask for it... would then have to be ratified by 38 states to take effect...."
- David Gergen (November 15, 2011). "Is money's deep role in politics the root of our woes?". CNN. Retrieved 2011-12-14.
- "America's constitution: If it ain't broke". The Economist. Nov 8, 2007. Retrieved 2011-12-23.
- Letter to the editor (October 10, 1987). "In Defense of John Jay, Our First Chief Justice". The New York Times. Retrieved 2011-12-23.
- Staff writer, reviewing Nation of Devils: Democratic Leadership and the Problem of Obedience by Stein Ringen, The Economist, Oct 5th 2013, The maturing of democracy -- Picking up the tab -- Democracy has survived many crises. Elected governments should worry less about voting lobbies and more about how to govern well, Accessed Nov 8, 2013, "...About democracy in America, Mr Ringen nears despair. Nothing short of a total overhaul of the constitution will repair the years of accumulated damage and dysfunction, he believes...."
- Jean-Philippe Immarigeon, Harper's Magazine, February 2014 issue, Dissolve Congress: A cure for constitutional crisis, Accessed Jan. 25, 2014, "...experienced America’s institutional breakdown..."
- Lou Zickar (August 19, 2011). "What taxpayers want". CNN. Retrieved 2011-12-14.
- David O. Stewart (May 13, 2010). "How Would You Change the Constitution?". Huffington Post. Retrieved 2012-01-10.
- "Balanced budget amendment push sparks debate". Indystar.com. November 30, 2011. Retrieved 2011-12-23.
- Special to the New York Times (April 2, 1987). "WASHINGTON TALK: THE CONSTITUTION; To Amend or Not: The Debate Continues". The New York Times. Retrieved 2011-12-23.
- Staff writers (August 13, 2010). "A futile effort to strip birthright citizenship". Denver Post. Retrieved 2011-12-23.
- Lessig (2011, pp. 292-293)
- Lawrence Lessig (Nov 16, 2011). "Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It". Google, YouTube. Retrieved 2011-12-13.
(see 32:20 minutes into the video)
- James Warren (December 10, 2011). "Let’s Do Something About Privilege, Donors, Corporations and the Constitution". The New York Times. Retrieved 2011-12-23.
- Lawrence Lessig (February 8, 2010). "How to Get Our Democracy Back". CBS News, The Nation. Retrieved 2011-12-14.
- MICHAEL KINSLEY (November 5, 2006). "Essay: Election Day". New York Times: Sunday Book Review. Retrieved 2009-10-10.
- "Sanford Levinson". Public Broadcasting Service: Bill Moyers' Journal. December 21, 2007. Retrieved 2009-10-10.
- Staff reporters and Steven Sweeney, March 4, 2012, Massachusetts Daily Collegian, A Second Constitutional Convention, Accessed April 7, 2014, "...As Justice Ginsburg’s comments suggest, the U.S. Constitution is more a relic of the 18th century than a workable plan for government in the 21st. A recent study conducted by David Law ... concluded that our Constitution’s global appeal has diminished markedly...."
- Letter to the editor (October 19, 2011). "Occupy Denver and the response from police (6 letters)". Denver Post. Retrieved 2011-12-23.
- The Rapidian, Catalyst Radio on Friday Sep 20th, 2013 11:30am with Linda Gellasch and WYCE Radio 88.1 FM, Catalyst Radio: Wolf PAC starting with local efforts to get money out of politics, Accessed Jan. 15, 2014
- Katerina Nikolas, Nov 9, 2011 in World, Digital Journal, Wolf-PAC.com: Proposal to prevent corporations buying politicians, Accessed Jan. 15, 2014, “...In October, Cenk Uygur, ... announced the launch of Wolf-PAC during Occupy Wall Street protests. Wolf-PAC is a political action committee with a mission to pass the 28th Amendment to prevent corporations buying politicians...”
- MORGAN TRUE, 05/03/2014, Brattleboro Reformer, Vermont first state to call for constitutional convention to get money out of politics, Accessed May 5, 2014, "...Vermont became the first state to call for a convention to amend the U.S. Constitution to reverse the U.S. Supreme Court's Citizens United decision ... Monetta is the organizing director for Wolf PAC...
- "Welcome". Convention of States. Citizens for Self-Governance.
- Ritz, Erica (2013-12-18). "Could a Convention of States Occur as Early as 2016?". The Blaze. Retrieved 5 January 2014.
- Roller, Emma (December 4, 2013). "Conservatives' Improbable New 'Convention of States' Project". Slate. Retrieved 21 January 2014.
- Benko, Ralph (2013-08-19). "Mark Levin's Game Changer: Using The Constitution To Arrest Federal Drift". Forbes. Retrieved 21 January 2014.
- Weigel, David; Roller, Emma (December 10, 2013). "Give Me Amendments or Give Me Death". Slate. Retrieved 21 January 2014.
- Sherfinski, David (December 30, 2015). "Rubio backs call for constitutional convention to balance budget, impose term limits". Washington Times. Retrieved 4 January 2016.
- Davenport, David (2013-08-29). "Mark Levin Makes A Strong Conservative Case With Weak Constitutional Arguments". Forbes. Retrieved 5 March 2014.
- von Spakovsky, Hans (September 4, 2013). "Mark Levin's Amendments for Liberty". Real Clear Politics. Retrieved 5 March 2014.