Column: The U.S. Constitution is flawed. But a constitutional convention to fix it is downright scary

The US Constitution is flawed and should be changed.

I would start here:

◆ The undemocratic provision that gives each state two senators so that little Wyoming has equal representation with California should be revised.

◆ The 2nd Amendment, which has become a real threat to public health, should be amended to ensure that it does not grant every fool and maniac the right to own and bear a gun.

◆ The electoral college, which allows presidents to take office who do not win the popular vote, should be abolished.

But while I strongly support these and other reforms, I am even more strongly opposed to convening a constitutional convention. At least now.

Stipple style portrait illustration by Nicholas Goldberg

opinion columnist

Nicholas Goldberg

Nicholas Goldberg was the editorial page editor for 11 years and is a former editor of the Op-Ed page and the Sunday Opinion column.

A convention in the current political climate could turn into a potentially uncontrollable free-for-all game that could lead to all sorts of dangerous unintended consequences.

Although no such convention has been held in the United States since 1787, there is now a movement to start one, and some analysts believe it comes chillingly close.

Under Article V of our existing Constitution, states may ask Congress to hold a convention to propose constitutional amendments and amendments. At one count, 19 states have already made such a request, and more than a dozen are moving in the direction. Those numbers are grim for a variety of reasons, but if two-thirds of the 50 states — 34 of them — propose a convention, Congress would have to convene one.

What would a congress look like, who would be appointed, how many votes would each state get, what would the rules for engagement be? The constitution doesn’t say that. Presumably, its members would be appointed by the state legislatures and would negotiate until they agreed on a package of proposed constitutional amendments. To pass, the proposals require three-fourths of the states’ approval.

One reason we know so little about what a convention would look like is that the constitution has never been so amended in the past. It’s an untested alternative approach.

So why object? To be honest, I’m less concerned with principles than with pragmatic politics. In our current political climate, I fear it could go haywire.

Though Democrats and Republicans want changes to the Constitution, it’s the GOP that’s most feverishly pushing for a convention right now. Republicans currently control most of the state legislature seats in the country, and they may have disproportionate power in the process compared to Democrats.

It is even conceivable (though by no means certain) that each state would have a single vote at a constitutional convention, meaning liberal California of 40 million would have no more say than Republican-dominated Wyoming of 581,000.

Rick Santorum, the former Republican Senator from Pennsylvania, is a key supporter of the convention, which he says is justified by “the current state of the federal government and the inexorable path toward fiscal catastrophe and socialist tyranny.”

Other supporters include members of the Tea Party, the Federalist Society and many Trump supporters, according to a recent New York Times story.

Although many conservatives have called for a Congress with a limited agenda (e.g. budget restrictions and term limits for federal officials is one suggestion), legal scholars fear a “runaway” Congress, with delegates tossing aside their official mandate and pushing for a much broader one changes. Nothing in the Constitution would prevent that.

It’s a particularly frightening prospect at a moment of intense political polarization and hostility, when common ground is elusive at best, and when disruption, populism and demagogy are the rage.

Imagine the excitement of election deniers, climate deniers, anti-immigration, anti-abortion and pro-gun groups given the chance to rewrite the constitution. Imagine the feverish maneuvers of large corporations and other stakeholders right outside the room.

How bad could it get? Theoretically very bad. I’m just making it up, but the Convention could propose strengthening the 2nd Amendment and rejecting any gun restrictions at all. Or it could call for weakening the separation of church and state by making reference in the constitution to the nation’s Christian heritage. Or the imposition of a national abortion ban. Or remove First Amendment protections for the free press.

Oh that would never happen you say? I’m dealing with worst-case fantasies? Maybe like this.

Some very smart legal scholars think I’m theatrical. Sanford Levinson of the University of Texas at Austin is not a conservative, but he supports a congress because he believes our current founding document is “radically flawed” and that structural changes are needed if government is to operate effectively. He believes that extreme proposals like the above would never materialize because they would not win the support of three-quarters of the states.

But I’m too scared to take that risk at such a volatile, off-kilter moment in US history.

Conservatives have also opposed a constitutional convention in the past. Chief Justice Warren Burger told Phyllis Schlafly in 1988, “There is no way that the actions of a constitutional convention can be effectively restricted or silenced.” Justice Antonin Scalia told an interviewer, “I certainly wouldn’t want a constitutional convention. I mean woah! Who knows what would come of it?”

Yes, we need serious, mature discussions about the constitution’s shortcomings and how to fix them. The traditional amending process has become terribly difficult, which is why the Constitution has only been amended once in the last 50 years.

But opening the entire document to radical changes at this unstable moment in history seems like a risky and potentially dangerous way to turn things around.

@Nick_Goldberg Column: The U.S. Constitution is flawed. But a constitutional convention to fix it is downright scary

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