Is It Time for a New US Constitutional Convention?

Introduction.

This posting provides information to help explore the key arguments surrounding this question from both positive and negative perspectives and to provide a useful framework to inform the debate.  Commentary is organized into the following categories: Survey Information, Historical Context, Current Challenges, Arguments for a New Constitutional Convention, Arguments Against Convening a New Constitutional Convention, Alternative Considerations, Some Thoughts About the Future, and a concluding statement. The scope of this posting is limited to U.S constitutional conventions; it does not cover the separate topic of state constitutional conventions which are treated separately. The U.S. Constitution cannot be changed through state-level initiatives; only the federal government, through a process involving Congress and state ratification, can amend the Constitution, meaning state initiatives cannot directly modify it.

The United States Constitution, adopted in 1787, has endured for over two centuries as the foundational document governing the nation. However, in recent years there has been growing debate over whether it is time to convene a new Constitutional Convention to address contemporary challenges and issues.

Survey Information: Jill Lepore, in her innovative article, The Unamendable Constitution: How our Inability to Change America’s Most Important Document is Deforming our Politics and Government, provides both information about how perceptions of our constitution have evolved over time and survey information documenting that evolution. Lepore gives her readers the opportunity to take their own survey regarding the constitution. The following small excerpt from her article provides helpful information about how Americans have been responding to this question over time.

“Public-opinion surveys have been asking Americans this question for a long time, as the political scientist Zachary Elkins has demonstrated. In 1937, when asked Should the Constitution be easier to amend, twenty-eight per cent of those surveyed said yes, and sixty per cent said no. A half century later, in 1987, another survey asked more or less the same question, and got more or less the same answer: twenty per cent of respondents said that the Constitution was too hard to amend, and sixty per cent said that amending it was about as hard as it ought to be. This era of contentment appears to have come to an end. In 2022, forty-one per cent of respondents said that the Constitution should be more frequently reviewed and amended, and another seven per cent that it should be entirely rewritten and replaced. Those are the over-all numbers. But the results are strikingly polarized. Seventy-two per cent of Republicans think that the Constitution is basically fine as is; seventy-two per cent of Democrats disagree.”

Reference: Lepore, Jill, The Unamendable Constitution: How our inability to change America’s document is deforming our politics, New Yorker, October 26, 2022.

Historical Context: To assess the need for a new Constitutional Convention, it is essential to understand the historical context of the original convention. The Founding Fathers designed the Constitution to be adaptable through amendments (Article V) without the necessity of a complete overhaul. The existing Constitution has been amended 27 times, reflecting its ability to evolve to meet changing circumstances.

References include: the Lepore article referenced the previous section and The Library of Congress collection: Documents from Continental Congress and the Constitutional Convention, 1774-1789.

Challenges: Current challenges include:

a. Political Polarization: The United States is experiencing unprecedented political polarization, which has hindered legislative progress and raised concerns about the stability of democratic institutions.

b. Technological Advances: The digital age has brought about new challenges, such as privacy rights, cybersecurity, and the role of social media in shaping public opinion.

c. Electoral System: Issues related to campaign finance, gerrymandering, and the electoral college have raised questions about the fairness and legitimacy of elections.

d.. Socioeconomic Disparities: Income inequality, healthcare access, and affordable education have become pressing issues affecting millions of Americans.

References Include: Miller Jody. Does the U.S. Constitution Need a Rewrite? The Informed Citizen? ; Koval, John. Is a New Constitutional Convention a Good Idea? Brennan Center for Justice, August 10, 2023.

Arguments for a New Constitutional Convention:

a. Address Contemporary Issues: A Constitutional Convention could provide an opportunity to address pressing problems that the original framers could not have foreseen.

b. Promote National Unity: It might serve as a forum for national dialogue and consensus-building, potentially reducing political polarization.

c. Strengthen Democracy: Proponents argue that a convention could lead to reforms that enhance the democratic process and make it more representative.

References Include: Edelson, Cris. Our Constitution Has Failed, It’s Time for a New One. American Constitutional Society. July 3, 2021.; Moe, Terry and Wiliam G. Howell. Our Outdated Constitution, Hoover Institute, June 2, 2016. Rosen, Jeffrey, What If We Wrote the Constitution Today? The Atlantic, December 8, 2020

.Arguments Against a New Constitutional Convention:

a. Risk of Unintended Consequences: Opening the Constitution to revision may lead to unforeseen negative consequences, undermining the existing framework.

b. Political Manipulation: Concerns exist that special interests or partisan agendas could dominate the convention, resulting in changes that favor a particular group.

c. Amendment Process: Some argue that the existing amendment process (Article V) is sufficient and less risky than convening a new convention. It has also been mentioned that (Article V) provides two methods on amending the constitution although, so far, only one method has been used successfully. The second method is sometimes referred to as the Article V Convention. Some urge caution but do not specifically advocate a complete rewrite of the Constitution.

References Include: Rappaport, Michael B. and David Strauss. Common Interpretation of Article V. National Constitutional Center. Millman, Noah. A New Constitution? Be Careful What You Wish For, The Week, October 21, 2020.  Mattox, Casey. Does the Constitution Still Work? Americans for Prosperity, September 16, 2020.  Reed, Rachel. Our Original Constitution Was Both Brilliant and Highly Flawed, Harvard Law Today, September 15, 2021. Weinstein, Allen. The Constitution: A Treasure Worth the Wait in Line, Prologue, Fall 2008. Vol 40 No. 3. Super, David. The Stealth Threat of a New Constitutional Convention, AIER, August 18, 2022.

Rather than convening a new constitutional convention, there are alternative avenues for constitutional reform:

1. Constitutional Amendments: The existing amendment process has been used successfully 27 times to address various issues. Advocates of reform can pursue this route to make specific changes to the Constitution.
2. Legal Interpretation: The judiciary plays a significant role in shaping constitutional interpretation. Legal challenges and court decisions can help adapt the Constitution to contemporary issues.

Future Considerations: Thinking of the near future, whether we create a new constitution or stay with our present constitutional system, it is of utmost importance that we end up with a foundational document capable of withstanding the impact of increasingly rapid change already being brought on by artificial intelligence, quantum computing (which is already being discussed as potentially being used in conjunction artificial intelligence to create even more powerful generative AI systems), and other emergent technologies. Even the possibility of this type of scenario emerging is grounds for urging extreme caution when thinking of convening a new constitutional convention, otherwise our Republic could become a ship without a rudder in an unknown sea.

Reference: Kaku, Michio. Quantum Supremacy. Talks at Google.

Concluding Statement.

The question of whether it is time for a new US Constitutional Convention is a complex and contentious one. While the United States faces significant challenges, there are valid concerns about the potential risks and unintended consequences of such a convention. Given the historical adaptability of the Constitution through amendments, some argue that the existing process remains sufficient.

Ultimately, the decision to convene a new U.S. Constitutional Convention would require careful consideration, consensus-building, and a deep understanding of the potential consequences. It is a decision that should be made with great caution, taking into account the values and principles upon which the United States was founded, while also addressing the pressing issues of the present era.