American politics today is extremely polarizing, and citizens seem to feel it. But despite the partisan divide, Republicans and Democrats across the country still agree on some things. For one, there is broad agreement in the United States that the pillars of our democracy are under attack.
According to a recent poll by the Democracy Project, an initiative of Freedom House, the Bush Institute, and the Penn Biden Center, 68 percent of Americans believe that our democracy is getting weaker. Fully half of Americans believe that the country is in “real danger” of becoming an authoritarian country. Even in the midst of this uncertain political climate, there is a campaign to open up the Constitution to “edits” that could threaten the country with far more unpredictability and instability.
Over the decades, there have been growing efforts to use Article V of the Constitution, which governs how to amend the document, to hold a new constitutional convention. Extremists on both sides of the aisle have pushed for an unprecedented convention, usually claiming that their delegates would propose only slight alterations to the Constitution. But an Article V convention would open the floodgates. It would expose the Constitution to any number of sweeping changes, putting the basics of our democracy at risk. Shockingly still, it is close to becoming a reality.
One campaign is actively pushing for a balanced budget amendment to the Constitution, and its advocates claim to have gathered 28 state resolutions, just six shy of the number needed for Congress to call an Article V convention. The catch? More than half of these resolutions date back 30 years or more. State legislatures passed them either without expiration dates or as “continuing applications” so they remained in effect generations later. This is a sincere effort to exploit the lack of time limits on these stale measures to change the Constitution today.
But popular sovereignty dictates that the Constitution can be altered only with the “sanction of the people” acting through “representative assemblies,” or at least according to a unanimous Supreme Court. The justices explained that proposing and ratifying a constitutional amendment are not separate processes but “succeeding steps in a single endeavor” with the “natural inference being that they are not to be widely separated in time.” As such, this attempt to revive a failed effort from the 1970s and 1980s, without putting it before the American people and their elected representatives today, raises serious legal questions. More importantly, it raises fundamental concerns for democratic legitimacy.
What makes this even more confounding is the fact that there is a standard in place for a reasonable time limit for amending resolutions. With very few exceptions, Congress included a seven year ratification deadline in the constitutional amendments proposed after the Civil War. Indeed, seven years may seem like a perfectly reasonable limit.
It gives legislators ample time to consider problems of constitutional magnitude and to vote for or against proposed solutions. Constitutional change forged in this way may rest on the shakiest of legal grounds and, from a political vantage, be wholly illegitimate. Even still, it is possible because the scant text in Article V offers no guidance. Moreover, because states have yet to meet the threshold of 34 resolutions, courts have never been faced with a case challenging a constitutional convention.
Given that Article V contains no safeguards to restrain delegates, or instructions for choosing delegates, no part of the Constitution would be off limits. While some advocating for a convention may claim to care only about one issue, invoking Article V in this way would put the most basic parts of our democracy at risk. Extremists would have free rein to everything from our systems of checks and balances, to our most cherished rights, such as freedom of speech and voting for our leaders.
Our politics today may very well be crazy. But it would be even crazier if legislators who failed to secure a constitutional convention in one generation could bind their states, and the country, generations later. This would not just be crazy, but it would be dangerous. The majority of Americans are already worried about our democracy. Legislators across the country must not give them any more reasons to be afraid.
Wilfred Codrington III is the Bernard and Anne Spitzer fellow in the democracy program at the Brennan Center for Justice in New York.