When Is the Right Time to Talk About Democracy?

By Luke Pickrell

Defending the Constitution in the name of fighting Trump is a dead end. Downplaying constitutional critique to "ally with liberals" is intellectually dishonest and counterproductive. This post, from October of last year, continues the argument that the Constitution has no redeeming qualities and that now is the time to talk about a new one. - the editors

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The Constitution has been amended twenty-seven times since 1787, but only seventeen times since the Bill of Rights was ratified in 1791. It hasn’t changed meaningfully since 1971, when the voting age was lowered to eighteen. This meager record never fails to astonish people in other countries.

It’s not for lack of trying. Over the last two-plus centuries, more than ten thousand amendments have been proposed, with nearly fifteen hundred reaching the floor during the Progressive Era alone. Since 1800, over seven hundred attempts have been made to reform or abolish the Electoral College. In 1969, abolition seemed “unstoppable” until a Senate filibuster killed the bill.

Given population shifts, political polarizations, and rock-solid two-party rule, many observers — including Aziz Rana, Michael Klarman, Daniel Lazare, Erwin Chemerinsky, and Jill Lepore — have concluded that Article V is deeply flawed, if not entirely obsolete.

But hope is evergreen. Some people, including conservatives like John Malcolm of the Heritage Foundation, are now eyeing Article V’s never-before-used convention clause. Malcolm explains:

While ratification always requires the consent of three-fourths (now 38) of the states, there are two methods for sending proposed amendments to the states for potential ratification. Amendments can be sent either by a two-thirds vote of both houses of Congress or, alternatively, by a convention of the states that would be called “on the application of the legislatures of two-thirds [now 34] of the several states.”

With Congress gridlocked, conservatives have turned to the states. Malcolm continues:

To date, the legislatures in 19 states have passed resolutions calling for a convention of the states limited to the three proposed subjects [Fiscal restraints on the federal government; limits on the jurisdiction of the federal legislative, executive, or judicial branches; and term limits for members of the federal legislative or judicial branches], and in another seven states, one of the two houses in the state legislature has passed similar resolutions. [The Convention of the States Foundation] targets different states during their respective legislative sessions as potential pickups in its quest to achieve the magic number of 34 states calling for a convention and, ideally, the 38 states needed to ratify whatever amendments a convention might propose.

Facing this conservative agenda, some on the Left argue that discussing constitutional change is dangerous — that raising criticisms now would only aid the Right. Some concede the Constitution’s flaws but ask us to wait for the “right time” to push for change. That time, of course, is never clearly specified.

There are several ways to respond to this hesitation — some more effective than others.

First, recognize the obvious: realizing the Heritage Foundation’s dream is a long shot. Our Constitution is among the hardest in the world to amend. As Lazare notes:

In 1790, the three-fourths [ratification] rule meant that four states representing as little as 10 percent of the population could just say no to any change sought by the remainder. Today it gives thirteen states representing just 4.4 percent of the country the power to do so. As that number falls — it is projected to reach 4.0 over the next dozen years or so — the door to change will shut ever more tightly.

Richard Albert, a professor at the University of Texas at Austin, echoes Lazare’s assessment, calling America’s constitutional system “frozen.”

However, realizing a democratic constitution is also a long shot, so the “it will never happen” argument falls a little flat.

Second, question the premise that conservatives truly want a “new” constitution. Under the Heritage Foundation’s plan, the Constitution’s worst features — including the malapportioned Senate and the unelected presidency and vice presidency — would remain untouched.

Third, make clear that our project is fundamentally different. Democratic republicanism isn’t about “checking federal power” or defending “state sovereignty” — it’s about universal and equal rights and a single legislature elected by universal and equal suffrage with sovereign power. Our vision draws from documents like the Declaration of the Rights of Man and Citizen and thinkers like Tom Paine. The Heritage Foundation, by contrast, is rooted in Christian conservatism, pro-business ideology, and anti-communism. Our cause is morally righteous; theirs is not.

Fourth, reject an Article V convention altogether, whoever calls it. Daniel Lazare has done this for a while, arguing that a convention “leaves room for little but a state-centered affair in which the people are hardly more than bystanders.” Every state would get one vote, regardless of population. Wyoming would wield the same power as California. If one believes in one person and one equal vote, this is plainly unacceptable.

Instead, we need a constituent assembly — a body representing the people as a whole, elected nationally, empowered to either revise the Constitution or start fresh. As Lazare puts it, “Instead of deriving their authority from Article V, [the voters] would impose it — on the amending process, on the Constitution, on society.”

Rana, Klarman, and Chemerinsky have all suggested that constitutional renewal need not follow the framers’ rules. After all, the 1787 Convention ignored the Articles of Confederation to create something new. The founders didn’t wait for permission. Neither should we.

Finally, we must continue building a democratic constitution, regardless of what the Heritage Foundation or timid critics on the Left say. The U.S. is not a democracy and must become one.

We should not cede the terrain of constitutional critique to the Right. Martin Luther King, Jr. reminds us that the time is always right to speak out against injustice and fight for democracy. That includes taking on the Constitution.