When Is the Right Time to Talk About Democracy?
It's always the right time, argues Luke Pickrell
The Constitution has been amended twenty-seven times since 1787 and only seventeen times since 1791. It hasn't changed meaningfully since 1971, when the voting age was lowered to eighteen. This meager number never fails to make people in other countries incredulous.
It’s not for lack of trying: Over ten thousand amendments have been proposed over the last two-plus centuries, with nearly fifteen hundred put to the floor during the Progressive Era. Over seven hundred attempts to reform or abolish the Electoral College alone have been introduced since 1800. In 1969, a drive to abolish the Electoral College “seemed unstoppable” until the Senate filibustered the bill.
Given population shifts, the growing political divide, and a seemingly rock-solid two-party rule, many observers, including Aziz Rana, Michael Klarman, Daniel Lazare, Erwin Chemerinksy, and Jill Lepore, have concluded that Article V is deeply flawed, if not useless.
But hope is evergreen. Some people, including John Malcolm of the Heritage Foundation, are discussing changing the Constitution through Article V’s states convention clause, which has never been done. Malcolm explains:
In short, 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 unworkable, 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.
Faced with this agenda, some further to the left argue that talking about a new constitution plays into the enemy’s hands. It’s not only silly or “bourgeoise” to talk about the Constitution when the conservatives are doing the same; it’s downright dangerous. Some admit the Constitution is flawed but ask that we please wait for the “right time” to make critiques and call for a democratic republic. The correct time is never specified.
There are a few ways to respond, some of which may be more effective than others. The first is to state the obvious: Realizing the Heritage Foundation’s dream is a long shot. It’s not for nothing that our constitution is considered one of the hardest in the world to amend. 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, shares Lazare’s diagnosis, even using the same word to describe America’s situation: “frozen.” However, realizing a democratic constitution is also a long shot, so the “it will never happen” argument falls a little flat.
A second response is questioning the premise that conservatives really want a new constitution. In fact, under the Heritage Foundation’s current plan, many of the document’s “hard-wired” parts — including the malapportioned Senate and the unelected presidency and vice presidency — would stay the same. The document would be amended, but claiming that the right wants a new constitution is inaccurate.
A third response is that democratic republicanism isn’t about “checking federal power” or saving the states from the federal government's tyranny. Our imagined constitution would create a democratic republic based on universal and equal rights and a single legislative assembly elected by universal and equal suffrage. Our morals are grounded in democratic republicanism and the universal and equal rights expressed in documents like the “Declaration of the Rights of Man and the Citizen” and thinkers like Tom Paine. The Heritage Foundation has its roots in Christian conservatism, pro-business policies, and anti-communism. It stands for the infamous Project 2025 (which can be condemned without entertaining illusions that the Democratic Party is a democratic champion). Our cause is morally righteous; theirs isn’t.
A fourth response is to reject an Article V convention as undemocratic, regardless of who’s leading the charge. 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.” Each state gets a vote under the Constitution’s rules, but states contain different numbers of people. Should Wyoming’s vote be equal to California's despite an immense population difference? The answer is obviously no if one believes in one person, one equal vote. Instead, we need a constituent assembly. Lazare continues:
Since [a constituent assembly] would represent the nation writ large, its members would vote as a whole rather than as part of individual state delegations. Taken to its logical conclusion, the concept implies that the people should vote as a whole as well, not for candidates in separate state or congressional-district contests, but from a single ballot in a single national election, with seats allocated according to each party or slate’s share of the total.
Once seated, the members’ remit would be unbounded. They could tinker with a few clauses here or there or throw the entire Constitution out and start from scratch. They could submit their recommendations to a referendum or decide that they had sufficient authority to institute them on their own. Instead of deriving their authority from Article V, they would impose it — on the amending process, on the Constitution, on society.
Rana, Klarman, and even Chemerinksy have also argued for a revision process that doesn’t play strictly by the Constitution's rules. Rather than following what the framers wrote, we should remember how the Constitution came into being in the first place: through “self-legalization” in 1787, usurping the nation’s legitimate governing document, the Articles of Confederation. The framers didn’t care about following the established rules, and we shouldn’t either.
Finally, we could ignore the Heritage Foundation and critics to the left and keep plugging away at creating a democratic constitution. Regardless of what the Heritage Foundation does, the US is not a democracy and must become one. Irrespective of what critics on the left say, the US is not a democracy and must become one. Why should we cede the terrain of constitutional critique to the Heritage Foundation? 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.