A NEW CONSTITUTIONAL CONVENTION:
Written by Frank Strier
Good Idea or Potential Fiasco?
The Spanish philosopher Santayana cautioned, “Those who cannot remember the past are condemned to repeat it.” (Put more colloquially, “Fool me once, shame on you. Fool me twice, shame on me.”)
Indeed, the past often informs the future, serving as a beacon for reform. We can, for instance, juxtapose key current issues with those that inspired the original Constitutional Convention in 1787 Philadelphia. There, the Constitution’s framers rejected the weak Articles of Confederation. Instead, they replaced them with: a) a stronger central government, and b) a bill of individual rights protecting life, liberty and property.
Inspiration for a convention began late in the proceedings at the Philadelphia convention. Today, several critical constitutional issues urge reform anew. For many, the issue is not if at least some of these proposals should be advanced. Rather, it is how and when.
Survey data indicate increased public interest in amending the Constitution. According to a survey published in the August 8, 2022 issue of The Atlantic (Jedediah Britton-Purdey, “The Constitutional Flaw That’s Killing the American Democracy,”), 41% favored making it easier to amend The Constitution.THE
ARTICLE V CONVENTION
Congress v. The States
Under the Constitution, amendments can be proposed by either of two ways. First, two-thirds of both houses of Congress can vote to offer one or more amendments. The amendment must then be ratified by three-fourths (38) of the states. That is how all amendments to date have been passed.
Alternatively, Congress can call a new constitutional convention if two-thirds of the state legislatures ((34) request Congress to do so in order to propose amendments per the Constitution’s Article V. Then, three-fourth of the states (38) must ratify any such proposals.
Fine, but we have never utilized the Article V convention.
If, however, there are multiple worthy amendments proposed, can (and should) the historic 1787 Philadelphia Convention serve as a model for a new convention to consider some or all of them at once? In theory, yes. Still, the convention model has never been deployed; none of the Constitution’s 27 amendments have been implemented by an Article V convention.
Academics and activists from across the political spectrum have long called for a Second Constitutional Convention. In February, 2023, for example, the Brennan Center for Justice at the NYU School of Law hosted an academic symposium exploring the prospects for amending the Constitution.
On the left, liberals have pushed for a convention motivated in no small part by a desire to overturn the Supreme Court’s decision in the much-criticized Citizens United decision. Public corporations, they suggest, should not be entitled to spend money spreading political opinions. Four liberal states—California, Vermont, Illinois, and New Jersey—have signed on to this idea.
On the right, conservatives have long sought a Balanced Budget Amendment. (See below.)
There are no rules for an Article V Convention. The group convening to rewrite the Constitution can be totally unelected, and therefore unaccountable. Moreover, no rules limit corporations and other “deep pockets” from pouring money into such conventions.
The following five proposals address long-term deficiencies in our legal system.
HIGHLY DISTORTIVE PRESIDENTIAL ELECTION FACTORS
Winner Take All
Our presidential election process continues to be distorted—and sometimes corrupted—by a practice nowhere to be found in the Constitution. That would be the “Winner Take All” practice (hereafter “WTA”) of allocating Electoral College votes. WTA, of course, is a popular casino gambling bet. Hardly anything the Constitution’s framers would have espoused.
Presently, the most politically powerful person on the planet is elected via a gambling game—one that can and has negated the will of the public. WTA is easily our most distortive electoral practice. Winning a plurality in a state election by a single vote carries the same benefit as a win by a million votes. Then why is it so pervasive? Simply this: from the perspective of states competing for influence, to not adopt WTA would be akin to bringing a knife to a gunfight.
WTA also potentiates undemocratic outcomes. All a candidate needs do to win the Presidency is receive a plurality of votes in the eleven most populous states. Not a single vote more. That is how popular vote losers won the election in 1824, 1876, 1888, 2000, 2016 and 2020. An outcome irreconcilable with the concept of democracy.
There is no good reason to perpetuate WTA. Indeed, it is a flagrant denial of constitutional equal protection. But given its political impact, employing a more democratic process will be unlikely. Only Maine and Nebraska have done so. Their temerity should be complimented.
Impact of The Small State Bias in The Electoral College and in The U.S. Senate
This bias manifests itself in two ways. First, lower population states get the same two Senate-based votes in The Electoral College as do all of the states. So, for example, Wyoming with its roughly 587,000 population gets the same two votes in: a) the U.S. Senate, and in b) The Electoral College as does California with its approximate population of 39 million—albeit having only one 68th of California’s population.[1]
Why then do we abide this patent disproportionality? Federalism. The Electoral College preserves a level of federalism (the division of power between the federal and state governments) that protects the interests of smaller states from majority rule, as the electoral votes of smaller states vastly overrepresent their populations.
Nowhere is this small state bias more prominent than in the U.S. Senate. In 2016, for example, California voters cast 14,181,595 votes, and their Wyoming counterparts cast 255,849 popular votes—a California/Wyoming ratio exceeding 55 to 1. Yet they both get the same two senators in the U.S. Senate.[2] A huge bias indeed. Hmm.
Impact of the Small State Bias in the U.S. Senate
Yet another illustration of the small state bias can be found in the U.S. Senate. Although the bias is often mentioned in connection with the Electoral College, its consequences are far more common in another, more common government activity—the U.S. Senate. To wit, the 21 smallest states that combined have the population of California, collectively have 42 votes in the U.S. Senate in stark contrast to California’s two Senatorial votes.
Current popular views of the Electoral College? Decidedly negative. A 2023 Pew Research study found that nearly two-thirds of the public (63%) prefer the Presidency to be decided by the national popular vote (in lieu of the moldy and potentially undemocratic Electoral College.) Put otherwise, most Americans prefer that the people, not the states, elect the President.[3]
THE PROPOSED EQUAL RIGHTS AMENDMENT
Beginning with the biblical “Original Sin,” women have borne discrimination other than their gender—history’s oldest social injustice. The proposed Equal Rights Amendment (hereafter, the “ERA”) would invalidate laws and other forms of discriminating against women. (Notably, the Biden Administration reversed the position of the Trump Administration, which had declared the ERA “a dead letter.”[4])
Some might ask, why do we need the ERA? After all, gender-based discrimination is already banned by laws such as:
The Equal Pay Act (1963)
Title VII of the Civil Rights Act (1964)
The Pregnancy Discrimination Act (1978)
The ERA, however, would do more. It would clarify the legal status of sexual discrimination for the courts, where decisions still deal inconsistently with such claims.
Since first introduced in 1923, the ERA has elicited rabid support from some and fervid opposition from others. Prominent among the former was President Joe Biden. Consider his August 26, 2023 statement on The Equal Rights Amendment Centennial:
One hundred years ago, a group of pioneering women proposed The Equal Right Amendment which would enshrine the principle of gender equality in the Constitution. Now, a century later, our fight continues to finish the job and codify women’s rights and gender equality once and for all.[5]
The current status of the ERA? Grimly familiar for ERA proponents. Blocked again, gender discrimination doggedly remains a flagrant inequity that perseveres in our (purportedly) enlightened society.
Illustrating a classic cruel irony is the opposition to the ERA from the highly accomplished author, Phyliss Schlafly. Her justification for the domestic status of women revolved around the notion that their limited roles (primarily in the home) were natural. With friends like these…
THE BALANCED BUDGET AMENDMENT
This long-proposed amendment would prohibit total government outlays from exceeding total receipts for a fiscal year unless approved by three-fifths of both houses of Congress. Generally, it has been favored by Republicans and conservative political organizations. (Of note: the federal government hasn’t run a surplus since the Clinton Administration.)
Supporters of the Balanced Budget Amendment claim it would reduce deficit spending and lead to greater fiscal discipline. But by the same token, a balanced budget constraint could tip weak economies into recession, causing sizable job losses. Moreover, it could impede the ability of future policymakers to employ fiscal policy to counteract recessions (via economic stimuli) or respond to national emergencies.
Because Congress’ power to tax and spend derives directly from the Constitution, a balanced budget mandate tying Congress’ hands would, presumably, require a Constitutional amendment. Exceptions would be available for times of war, recession or other national emergencies. Alternatively, Congress could allow the legislature to suspend the rule by a supermajority vote.
Although mostly favored by the political right, some conservatives oppose it. See, e.g., this admonition from Peter Peterson, Secretary of Commerce during the Nixon Administration: “Tightening fiscal policy during an economic downturn could make a recession worse, and disrupt the flow of benefits to our most valuable citizens.[6]
TERM LIMITS FOR THE U.S. SUPREME COURT
Lifetime appointments to the federal judiciary were intended to safeguard the independence of the judiciary, and to create a check on the other branches’ potential abuse of power. But as life expectancy continues to rise, a related issue arises. Dismissing the impact of senility is to live in denial. And to knowingly ignore this reality as it effects the Justices of the U.S. Supreme Court is indefensible—especially when there are viable and humane alternatives.
When President Biden announced in April 2021 that he was forming the Presidential Commission on the Supreme Court of the United States, it was unclear what precisely the commission could (and should) address. Common complaints about The Court—the fraught confirmation process for justices, the absence of any effective ethics code, and the extraordinary length of lifetime appointment—all seemed impervious to challenge unless by Constitutional amendment.
Term limits address the undesirability of lifetime appointments, especially as human longevity ascends. In response, the Commission proposed 18-year terms. Two slots on the Court would open up during each four-year presidential term. Under the current system, some presidents have been able to appoint numerous justices (four in Richard Nixon’s case), while others have had no appointments (e.g., Jimmy Carter). Presumably, knowing that a given Supreme Court seat will turn over every 18 years should better assure democratic accountability in this vital branch of government.
Term limits would eliminate a troubling pattern in presidential appointments: installing the youngest credible candidates onto the Court in hopes that they will implement the appointing president’s favored policies. For decades. Viewed more positively, term limits would facilitate the appointment of jurists with experience and records of quality.
THE SECOND AMENDMENT’S HORRENDOUS LEGACY OF BLOOD AND BUCKS
The United States suffers the world’s most destructive and costly gun violence—in both absolute and relative figures. Specifically, we consistently incur the highest levels of shootings among all industrialized nations. In 2023, the most recent year for which complete data is available, 46,728 people died from gun-related injuries, according to The Center for Disease Control and Prevention.
Most catastrophic is the “blood” of young people. Child gun violence has long been one of the leading causes of death for young children and teens in the U.S. In that same year (2023), for the third straight year, firearms killed more children and teens, ages 1 to 17, than any other cause—including car crashes and cancer.[7]
So, why do we abide this grim scenario of blood (particularly among young people)? Congrats if you guessed “bucks.” According to IBIS WORLD, the market size of the Guns & Ammunition market in the U.S. was $19.17 billion in 2025
But at what costs? Estimates vary. Harvard Medical School researchers found that gun violence costs the U.S. a head-spinning $557 billion annually, or 2.6% of gross domestic product. Gun violence that causes tens of thousands of U.S. deaths each year—far more than any other developed nation—is having a significant, negative impact on the country’s economy, according to the peer-reviewed study published in The Journal of the American Medical Association in 2022. (The opportunity costs of this much money are profoundly dispiriting.)[8]
Our suffering persists because of an appalling 5-4 decision by the U.S. Supreme Court. In the 2008 case of District of Columbia v. Heller case (2008), the Court’s 5-4 Conservative majority ruled that The Second Amendment’s sole stated justification of the right to bear arms—the need for a civilian “Militia” —did not indicate any intended limit on the right. (Instead, The Militia Clause was interpreted by the Court as an “illustration” of the Amendment’s breadth—notwithstanding the absence of any other Constitutional illustrations.)
The last time a majority of Supreme Court Justices was comprised of Democrat appointees was over a half century ago (1970).
In hindsight, Heller was one of the most brutally consequential decisions ever by the Court. A godawful illustration of the Supreme Court’s shameful role in perverting The Second Amendment.
Among industrial countries, The United States has the highest rate of gun violence (including both homicides and suicides). We are left with a scourge having little chance of abatement without first repealing the patently obsolete Second Amendment. (Alternatively, a liberal majority on the Court could have the same effect,)
NO ONE ABOVE THE LAW
President Joe Biden had proposed an amendment, known as the No One Is Above the Law Amendment, to supersede the 2024 Supreme Court decision Trump v. United States, which granted presidents immunity for “official acts”. The amendment would eliminate all "immunity for crimes a former president committed while in office." On July 25, Representative Joseph Morelle (D-NY) proposed a constitutional amendment to reverse the ruling, with the support of more than forty other members of Congress.
WHITHER THE CALL FOR A NEW CONSTITUTIONAL CONVENTION?
A handful of promising reforms bolster the call for a new Article V Convention. These proposals merit serious consideration. At the least, public awareness of their substantial potential benefits (and, where applicable, any potential drawbacks) should inform our decision-making. After all, what have we to lose?
Actually, quite a bit. For as the philosopher George Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” As with much of everything in American politics, a convention of states is an idea replete with potential dissonance and turmoil.
That doesn’t mean it is not a good idea.
Frank Strier is the author of Guns & Kids: Can We Survive the Carnage? Social Policy Press, 2015 and an former professor.
FOOTNOTES:
[1] See, e.g., Alexander Keyssar, Why Do We Still Have the Electoral College? Amazon.com/Why-Still-Have-Electoral-College
[2] https://www.politico.com/2016-election/results/map/president/
[3] https://www.pewresearch.org/po;/wp-content/uploads/sites/4/2023.14-pop_primaries_report.pdf
[4] Julie Suk, “The Trump Administration says the ERA is dead on arrival. It isn’t.” Washington Post, 1/21/20
[5] https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2023/08/26/statement-from-president-joe-biden-on-equal-rights-amendment-centennial/.
[6] See Peter Peterson, Facing Up: How to Rescue the Economy From Crushing Debt and Recover the American Dream (1993).
[7] For background and proposals, see Frank Strier, Guns & Kids: Can We Survive the Carnage? Social Policy Press, 2015.
[8] https://time.com/6217348/gun-violence-economic-costs-us/