Republicans and the Constitution

We’re familiar with the contours of the story: fifty-five delegates gathered in Philadelphia, in the sweltering summer of 1787, to do something about the inert Articles of Confederation. Having recognized that the old agreement was fatally flawed—it had no provisions for unitary foreign or tax policies, or for a national defense—the delegates set about creating a four-and-a-half-thousand-word lattice of compromises and counterbalances that has, with the notable exception of the years 1861 through 1865, cemented the union of the United States. The Constitutional Convention has become a sacrosanct chapter in American history, which is not to say that it has lacked an abundance of critics. In 1913, the historian Charles Beard dismissed the whole affair as a gathering of wealthy men, almost half of them slaveholders, scheming to preserve and enhance their economic power. Not so long ago, the late political scientist Robert A. Dahl and the legal scholar Sanford Levinson asked whether the constitution they produced was even properly democratic. But seldom have critics so thoroughly disdained the events in Philadelphia as to call for a do-over. Until recently.

Amid the stunning Presidential-election results last November, a smaller, though perhaps equally consequential, development went relatively unnoticed: the Republican Party now controls thirty-three state legislatures. On its face, this development demonstrates the discrepancies between the Democratic and Republican farm teams. Not only does the G.O.P. control the U.S. Senate and the House of Representatives; it has created a pipeline of candidates to fill those offices for the foreseeable future. But there are more immediate implications.

Article V of the Constitution provides for amendments to the document when a proposed change has been approved by two-thirds of each chamber of Congress and is subsequently ratified by three-fourths of the states. In 1995, under the leadership of Newt Gingrich, House Republicans alarmed by the federal debt approved an amendment that would have effectively barred the federal government from adopting a budget in which expenditures exceeded revenues. That was a bad idea—deficit spending is a tested way to stimulate a sluggish economy. The amendment stalled in the Senate, where it fell just short of the sixty-seven votes required for it to be submitted to the states.

In the years since, a balanced-budget amendment—unlike faddish anti-flag-burning and defense-of-marriage amendments—has remained a lodestar of G.O.P. aspiration. In January, Senators Chuck Grassley, of Iowa, and Mike Lee, of Utah, introduced a new one. In the current Senate, it is likely to meet the same fate as Gingrich’s. Even so, a balanced-budget amendment is not completely out of the question, owing to the fact that it is high on the agenda of many statehouse Republicans. That is where the state-level results of the November elections come into play.

Article V allows an alternative method of proposing constitutional amendments, which cuts Congress out entirely: two-thirds of the state legislatures can call for a constitutional convention. To be in a position to do this, the G.O.P. needs to gain control of just one more statehouse, which could happen as soon as next year. (Last year, the Times reported that twenty-eight states had already adopted resolutions calling for a constitutional convention on a balanced-budget amendment, an effort supported by the American Legislative Exchange Council, which is funded by the Koch brothers, among others.) So far, this route to an amendment has not succeeded, but of late we are exploring a lot of novel territory in American democracy. And, as the events of 1787 show, these things have a way of taking on a life of their own.

The original Constitutional Convention was intended only to recommend changes to the Articles of Confederation, not to do away with them, but the delegates literally took the law into their own hands and drafted a new document. It’s easy to imagine that an Article V convention would find it difficult to limit its agenda to the technicalities of budget finance. Abortion, the most divisive social issue of the past forty years, has insinuated itself into nearly every discussion of nominees for the Supreme Court. Could a gathering intoxicated by the possibility of imposing permanent change resist the urge to achieve by amendment what decades of lobbying, protesting, and the cultivation of sympathetic judicial candidates could not? Similarly, as the battle over immigration has intensified, conservatives have toyed with the idea of ending birthright citizenship, currently guaranteed by the Fourteenth Amendment. The allure of bypassing legislative stalemate on that issue might also prove tempting.

This sort of partisanship is precisely what the framers tried to avoid. The principle is that an idea should have demonstrated broad and transparent appeal before it is adopted into the framework of the republic. Since the ratification of the Bill of Rights, there have been five attempts to amend the Constitution that achieved congressional approval but failed to win ratification. With the exception of a proposed amendment to treat the District of Columbia as a state in matters legislative and electoral, the causes that these amendments expressed found some fulfillment through the legislative process (as with the eradication of child labor and the protection of equal rights for women), or aged out (such as a proposed prohibition from accepting titles of nobility from foreign powers), or proved wildly wrongheaded (such as the Corwin Amendment, of 1861, which would have curtailed any congressional attempt to end slavery). This would seem to suggest that most causes worthy of legitimacy can obtain it without the Constitution’s being amended; if the logic of a federal balanced budget were so compelling, it would have met with a greater degree of success legislatively.

Any proposed change to the Constitution would still require ratification by three-fourths of the states, but the mere theatre of a constitutional convention would be damaging to the nation. The last time a single party was dominant enough to amend the Constitution, the Republicans passed the Thirteenth, Fourteenth, and Fifteenth Amendments, which were ratified by the states; eleven had seceded and later came under Reconstruction governments. That was a very different Republican Party in a very different era, but even that process was fraught. However deep our partisan trenches may have become, we are not currently at war with ourselves. The convention scheme is less about responsibility than about the prerogatives of power.

Original Article
Source: newyorker.com/
Author:  Jelani Cobb