There is no road map for rewriting the Constitution

The modern news cycle is no longer a cycle. It is an incessant flood that churns out fresh scandals and crises on an hourly basis. It is hard to discern what really matters. Amid this flurry of ideas, a burgeoning movement has remained in the shadows. Over the course of several years, a handful of special interest groups have been working to rewrite the Constitution.

These special interest groups have pushed several states to call for a constitutional convention. If two-thirds of the states sign-on, the Constitution will be vulnerable to wholesale revision.

To be sure, the Constitution is not perfect. Over the course of 229 years, however, the Constitution, has guided us through varied and unforeseen perils. The 55 men who traveled to Philadelphia in the hot August of 1787 somehow produced an enduring framework that has since become sacrosanct. The Constitution has become America’s civic scripture, guiding us through polarizing threats and national schisms. 

The Constitution guided us through the existential threat posed in WWI. It required our increasingly powerful military to adhere to civilian oversight and authority. The Great Depression mired much of the populace in economic ruin and Congress, under the Constitution, enacted New Deal legislation designed to build and work our way out of economic stagnation. Desegregation splintered the nation, as did the civil rights movement that followed. Fractured debate attended our soldiers as they fought and died in Vietnam. 

Again and again, the Constitution mediated these tectonic conflicts that shook the ground beneath our feet.

The ground is shifting beneath our feet once again. Globalization has sparked an isolationist reaction tinged with racism. Political entrenchment seems intractable, as disagreements from immigration to foreign policy paralyze the body politic. In this posture of discord and partisanship, the Constitution stitches us back together. It is a unifying document to which all lay claim. We question its interpretation, not its authority. In light of this history, I am confident the Constitution will again help guide us through this present darkness.

I am significantly less confident, however, in the veiled attempt to rewrite the Constitution.

We have, of course, amended the Constitution before. In every instance, however, Congress proposed amendments that were only enacted upon ratification by three-fourths of the states. A long historical precedent beginning in 1791 guides the amendment process under this approach.

But no law or precedent limits the scope of a state-called constitutional convention. The Constitution itself sheds no light on the most basic procedures for such a convention. How many delegates does each state get at the convention? Is it one state, one vote, or do states with larger populations get a larger share of the vote? No law provides ground rules for delegates to follow, and the Supreme Court has indicated that it would not intervene to provide those rules. The game has neither rules nor referees.    

In times of entrenched idealism and shifting norms we have historically relied on the unifying document at the heart of our representational democracy. A convention called to rewrite that document could truncate our most stable emblem of unity at the precise moment that we need it most. It would be a seismic shift from which we may not recover. 

McKay Cunningham is an associate professor of law at Concordia University School of Law.