Amending the Constitution

For the past several decades, and especially over the past eight years, there have been growing calls by liberals and conservatives alike for an Article V convention of states to propose amendments to the Constitution. Article V of the Constitution states,

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress…”

Substantive reasons for calling a convention differ among those on the Right and Left; historically, liberals have wanted to enshrine in the Constitution greater powers for the federal government and certain guaranteed rights for various favored groups, although since the 1970’s they have largely preferred to work through the courts and avoid amending the Constitution altogether. Conservatives, meanwhile, have sought to clarify portions of the document to make it more difficult for activist judges to stray from the text and original understanding of the Constitution, as well as to impose a few good-government policy reforms—namely, a requirement for Congressional term limits and a Balanced Budget Amendment.

I support both these proposals, and others. But I worry when I see more and more conservatives endorsing a convention of states to bypass the normal amendment process. The Constitution should only be amended when absolutely necessary, and a convention carries with it great risks—one of the primary reasons why none have been held since the one in 1787 that gave birth to the Constitution.

There is nothing in the text of Article V, or anywhere else, to definitively limit the power of a convention to propose amendments. Such a gathering, once called to order, could in theory discuss any changes to the Constitution—a Balanced Budget Amendment or term limits, to be sure, but also a repeal of the First or Second Amendments, an enshrining of the administrative state as a fourth branch of government, an outright rejection of federalism, or a dramatic expansion of the powers of the legislative and executive branches. All would be on the table, once an attending state moved to discuss such changes.

Proponents of a convention argue that any given state could, when passing a resolution calling for a convention, stipulate that only certain topics may be discussed. But the constitutionality of such a move, or the ability of some states to enforce it against others who might wish to propose amendments outside those restrictions, has never been tested. Considering the stakes involved—a wholesale, formal rewrite of the entire Constitution, potentially transforming our nation beyond recognition—the risk of a convention is just too great.

The Constitution is a brilliant document, written by geniuses. It is also flawed, as are all things created by man. The Framers understood that, which is why an amendment process was added in the first place, and there are certain issues for which the process is undoubtedly necessary. But a convention of states is a process of last resort, an escape hatch to be used only in times of emergency. As serious as things are today, they are not that serious, and hopefully never will be.

Why Don't We Talk About Spending?

Remember when nearly all political debate centered around government spending? Everyone was talking about the national debt hitting $17 trillion. Thousands of people were in the street, and thousands more online, demanding an end to the stimulus and fundamental reforms to Medicare and Social Security before they went bankrupt. Fiscal cliffs and balanced budgets and sequestration were the talk of Washington.

And now? Any talk of reforming entitlements, apart from expanding them, is verboten. The GOP, supposedly the party of fiscal sanity and restraint, has nominated for president a man who considers Medicare and Social Security off limits entirely, and even Paul Ryan has seemingly given up his quest for meaningful entitlement reform for the time being. Proposals for a Balanced Budget Amendment, the center of debate just four years ago, suddenly seem antiquated and out of step with the times.

Meanwhile, the national debt has surpassed $19.5 trillion, the budget deficit is nearly $600 billion, and Social Security and Medicare are both expected to cease being able to fully pay for benefits within the next two decades—Medicare by 2028 and Social Security by 2034.

So why are so few people talking about the issue now, when the situation is if anything even more serious than it was four years ago?

Part of the reason is that so much has happened over those four years to shift the political conversation. Illegal immigration has surged, and President Obama in turn has introduced far-reaching and unconstitutional executive orders to legalize many of those immigrants. Gun control, too, has become a much greater issue, as has race relations and accountability in the law enforcement community. On the international stage, terrorist attacks around the world, coupled with the rise of ISIS, the continuing civil war in Syria, and the greater assertiveness of Putin’s Russia have all served to shift attention elsewhere.

But another important factor is that many Republican voters and Tea Party members—especially older voters, who have been the grassroots force behind many fiscally conservative proposals—have proven themselves to not, in fact, be especially conservative on such issues. This was proven most vividly during the primaries, when many such voters abandoned conservatives champions like Ted Cruz and Marco Rubio in favor of Trump, who didn’t even bother to pretend to be a fiscal conservative. Instead, he loudly promised to protect entitlements, Social Security, and Medicare for everyone, and condemned anyone who sought entitlement reform as hating the poor and elderly. A classic liberal argument—and many voters bought it.

Many of those same older voters never cared much for entitlement reform—at least not their entitlements. It was always easier to fight against the stimulus, against wasteful government programs that never directly affected them. But when it came time to discuss Social Security and Medicare, those topics were largely off the table for those voters, even when conservatives made clear that any restructurings would only affect future retirees, and were necessary for the programs to stay solvent.

Absent an energetic voting bloc that consistently pushed for broad-based entitlement reform, the novelty of cutting spending in Washington quickly wore off. There will always be support for eliminating waste and pork-barrel spending. But much of the national spending problem is driven by current and proposed entitlements—and despite any protests they might make to the contrary, many older Republican voters are just as opposed to reform as Democrats.