The right of the American people to revise the Constitution acting outside of Article V is supported by compelling historical precedents, as I have shown elsewhere. A new constitution could be adopted through a national referendum or by popular ratification of proposals made by a popular convention, for example. In this essay, I assume that both of those methods would be legally valid. However, a well-designed popular convention would possess much greater political legitimacy and be far more effective as a method of creating a durable new constitution than a national referendum. Contrary to conventional wisdom, such a popular convention is clearly feasible, and fears that it may cause political mischief are greatly exaggerated.
Three innovations particularly useful for the present analysis are among those contained in the proposed new constitution considered in this Journal’s symposium, which is referred to here as “A New Constitution” (ANC). They are: (1) election of Senators by a reconstituted House of Representatives; (2) overruling of any federal court decision by Congress; and (3) term limits for federal elected officials. Leaving their merits entirely aside, each of them would be politically very controversial. It is certain that as a package they would be far more contentious still. The ANC calls for their adoption by a single nationwide vote. It requires ANC’s approval by a “majority of citizens,” i.e., a popular referendum.
In contrast, Article V’s two amendment mechanisms both require supermajority action. The Founders also sought supermajority ratification for the 1787 Philadelphia Convention’s bold reforms to confer political legitimacy on their work. Popular constitutional reform proposals today will fail unless they are also seen as politically legitimate and as developed by effective methods. Proposals for reform by majority vote referendum fail both parts of that test.
Majority vote approval is to many a politically unacceptable standard for making major constitutional changes. Whatever political choices can legitimately be made by majority vote must in principle necessarily be reversible by a later majority vote. Many people today will be deeply dismayed to learn that what they think of as firmly established constitutional rights such as religious freedom could be taken away from them by an impassioned future popular majority. That alone would be a sufficient reason for many people to oppose the ANC. Moreover, if major constitutional changes could be adopted by majority vote, many future national elections would become wholly consumed by debates over whether the constitution should be further amended, not over choosing leaders or legislative policies. As discussed below, supermajority ratification of constitutional reforms will provide far superior legitimacy and stability for them.
Finally, a convention is unquestionably a superior method of redesigning a complex Constitution. For example, as noted the ANC proposes several fundamental and interrelated changes in the Constitution’s profoundly important separation of powers. Its proposals imply that the Senate and Supreme Court would become weaker, and the House of Representatives more powerful. Leaving their merits entirely aside, those proposals might have major unintended consequences. Because House members would be elected for two year terms and be subject to term limits, making the House more powerful might actually increase the already dangerously excessive power of the presidency or increase the influence of popular passions on national policy. At a convention, delegates would be able to weigh carefully the pros and cons of such interdependent alterations to the separation of powers. The Philadelphia Convention necessarily spent a great deal of its time doing precisely that. Referendum voters, on the other hand, might approve ANC’s proposed separation of powers changes without fully understanding their ramifications and without any ability to propose more workable alternatives.
Moreover, a convention is the only forum in which delegates would be able to reach a “grand bargain” through mutual concessions on a range of dangerously divisive national issues that today cannot otherwise be resolved. As I have written elsewhere, the Philadelphia Convention’s dramatic restructuring of the national government to give it the major new powers and stability needed to govern and defend America during its formative years was a classic example of a successful grand bargain. It resolved a series of bitterly contested issues that could not otherwise have been resolved, preventing the collapse of the Union.
For these reasons, ANC and similar proposals should not be adopted by national popular majority vote. A new constitution should instead be proposed by a convention followed by supermajority ratification. But Congress has never been willing to propose a broad range of structural amendments to the Constitution or to call a convention to consider such reforms under Article V, and it will not do so in the foreseeable future. Nor can popular “end runs” such as the National Popular Vote Initiative or “living originalism” avoid the pressing need for structural reform, for reasons I have explained elsewhere. A popular convention will be essential to achieve it. Following is a sketch of the practical issues and unfounded fears raised by organizing such a convention.
A Popular Convention is Clearly Feasible
The first task for convention supporters will be to create a nationwide convention coordinating committee (NCCC) to manage the convention process. A convention call issued by a carefully recruited NCCC can launch a strong popular movement in support of the convention’s work. The NCCC should be a relatively small national committee organized to run all phases of the convention. Its members should be a diverse group of well-respected citizens committed to the idea of holding a convention to achieve constitutional reform, but it is not necessary for them to agree on what reforms need to be made.
Just as a few examples, there is good reason to think, based on their achievements and on their established ability to recognize and withstand special interest pressures, that people such as Mary Barra, Oprah Winfrey, Henry Louis Gates, Jennifer Granholm, Yo-Yo Ma, Barbara Corcoran, Raj Chetty, Mark Cuban, Colin Powell, Bill Gates, Annette Gordon-Reed, Richard Posner, Leon Panetta, David Souter, Rahm Emanuel, Andrew Yang, David F. Levi, Madeleine Albright, James Mattis, Kwame Anthony Appiah, Mark Shields, Jamelle Bouie, David Brooks, and many others would be suitable NCCC members.
The NCCC’s first task should be to develop the “call” for the convention. The call will embody the NCCC’s overall convention strategy, seek public support for it, and provide a basis for fundraising. The call for a popular convention must be properly framed to achieve four goals: (1) to choose a suitable place and time for its meeting; (2) to present an agenda for public debate during delegate elections of reform issues that organizers believe that the convention should consider; (3) to provide the fundamental terms for the election of delegates; and (4) to gain public support for the convention and raise funds for its work.
A rough but conservative estimate of the overall costs of holding a convention and ratifying its work would be $300-$500 million. Some people may think that it would not be possible to raise that amount of money from small individual donors, as would be very desirable to avoid having any “strings” placed on the convention’s work by government officials or undue influence by wealthy donors. But that concern is likely to be sharply diminished if the amounts involved are placed in context. For example, the “GoFundMe” crowdfunding website alone has raised more than $9 billion over ten years, or an average of $900 million per year. As constitutional scholar Stephen Griffin points out, charitable foundations have billions of dollars they could use to support constitutional reform efforts (including the NCCC’s work) if they chose to do so. This suggests that if there is strong enough public support for a convention, providing the funding for it should be quite feasible. And that conclusion is greatly strengthened by political donation patterns.
During a single month—May, 2020—the progressive fundraising platform ActBlue reported that it had raised $178 million from more than 5 million contributors, with an average contribution of $34. ActBlue also reported that it had raised a total of more than $5 billion in small donor contributions since 2004. Looking at convention costs in this context, if 10 percent of registered voters nationwide—about 13 to 15 million voters, depending on the election—contributed $35 each to support the convention’s work, the entire convention cost would be covered. If the average contribution was $50, contributions by 6-8% of registered voters would cover the entire convention costs.
By comparison, in 2016, 15% of adults nationwide reported making a political contribution, which would constitute nearly 25% of registered voters. This data strongly suggests that private small donor funding is a realistic source of financing for the convention’s work.
Common Fears of a Convention Are Greatly Exaggerated
Though space limits prevent discussion of all of the many fears of convention opponents, a remarkable number of them base their position on their fear that any convention might supposedly run amok. Some fear that it would foolishly tamper with invaluable rights such as freedom of speech rather than making structural reforms such as abolishing the Electoral College. Others across the political spectrum worry that a convention might make drastic reforms they oppose, such as banning gun rights, expanding abortion rights, outlawing gay marriage or affirmative action, or requiring supermajority approval for tax increases. Let’s take a look at whether these fears are real or imaginary.
Not all “runaway” conventions are unfortunate—after all, the Philadelphia Convention was a runaway convention from a legal perspective. But it is theoretically possible that a convention today might focus not on structural flaws such as the malapportioned Senate or voting rights protections but instead on symbolic issues and constitutional rights—or perhaps both. Still, a “runaway convention” is not a realistic basis for concern once one grasps a few fundamental points about the inherent legal and political nature of a convention.
A convention’s work cannot bind anyone, because its legal character as a private association means that it has no authority of its own to change laws or the Constitution. Nothing any convention does has any binding force on anyone until its work is ratified. Moreover, if a convention does not propose a ratification mechanism that requires a sufficiently high level of supermajority approval for its proposals, its work will not be regarded as legitimate. Instead, political resistance to the results of the convention’s work will continue, much as popular opposition to the 1787 Constitution’s omission of a Bill of Rights vigorously persisted even after it was ratified.
The fact that durable constitutional changes must rest on supermajority approval means that there is a major built-in political safeguard for the convention process. A convention will have no choice but to proceed with great caution before proposing any radical change. It will propose bold reforms only when convinced that they are essential. The history of the Philadelphia Convention itself shows that. For example, the Convention debated requiring uniform national voting qualifications, and rejected the idea because delegates were concerned that some states would reject the Constitution if it imposed such a requirement. If a new convention included politically extreme proposals (e.g., ending the right to a jury trial) in its work, it would very probably doom its entire effort to failure in a supermajority ratification process. There is little reason to fear such ill-judged actions.
Convention opponents often claim that holding a convention would be a bad idea because it will inevitably be dominated by special interests. One variant of this fear is that delegates controlled by special interests will be elected, but that can be prevented by a well-designed election process. A second variant has broader implications. Writers such as the respected constitutional scholar Mark Graber argue that a convention will necessarily be dominated by the same special interests that control politics today. In effect, they contend that holding a convention would be futile because it could not escape the confines of “ordinary” politics.
Graber thinks that the main reason for today’s constitutional dysfunction is partisan polarization. But, he argues, polarized parties will never agree to constitutional reforms that may change the partisan balance of power, so meaningful constitutional reform cannot occur. That argument is overly broad.
The first difficulty it faces is that today’s constitutional dysfunction is not caused by partisan polarization, though polarization may worsen it. The Constitution is first and foremost a decision-making system for national policy, and many of its decision-making flaws have nothing to do with partisanship. Many profoundly important decisions that the federal government makes or fails to make through drift—for example, foreign policy and defense issues; modernizing national infrastructure including public health protection, highways, railroads, postal and communication systems; and many others—cannot usefully be described as raising “partisan” issues today. Further, many of the most important structural reforms the Constitution needs are not reforms that will alter partisan strength. Today’s dysfunctional Congress needs major reforms to restore its viability, and that is not a partisan issue.
Even where partisan alignments do strongly influence government decisions, what frustrates effective decision-making is not partisanship per se, but the fact that partisan forces are evenly balanced and that the Constitution’s rules do not force an end to the resulting partisan stalemate. As constitutional scholar Stephen Griffin’s work shows, by enabling inaction not just by one partisan group but by both major parties on various issues, the Constitution encourages policy disasters such as Congress’ failures to improve American intelligence before 9/11 and its willingness to permit the banking industry to operate without essential regulation for decades, leading to the 2008 financial collapse.
Ultimately, concern about the influence of vested interests rests on the view that popular action against them can never be successful, even when reforms have broad public support. But the Philadelphia Convention was vigorously opposed by powerful special interests in various states, who wanted to maintain their control of state powers and revenue sources. One of the convention’s main achievements was to bring those special interests under national control.
Of course, no constitutional convention can occur entirely outside the influence of the day’s politics. There will unquestionably be concerted political and legal efforts to block the holding of any popular convention or to hamstring delegates’ authority to prevent major reform, but a carefully organized convention effort should be able to overcome them. The history of the Philadelphia Convention shows that if peaceful reform is to occur, constitution drafters must be willing to make compromises that reflect the strength of existing interests that are too powerful to be limited by such a consensual process. But recognizing that some compromises will need to be made by any convention is far different from accepting the view that a convention will inevitably fail to make fundamental beneficial changes in the structure and operations of government. Whether the convention can achieve its reform goals will largely be a function of the quality of the organizing process and public support for it. But uncertainty about the ultimate extent of reforms is not a sound reason to despair and oppose a convention. A new convention is the most politically legitimate and effective method of popular action to achieve the full range of constitutional reforms America urgently needs to restore social harmony and republican government.
George William Van Cleve is Dean’s Visiting Scholar, Georgetown University Law Center. He is the author of several books on United States history and the Constitution, the most recent of which is Making a New American Constitution (2020).
