The question raised in the title recently appeared in the New York Times. Jodey Arrington, a conservative House Republican from Texas, introduced legislation to allow the US archivist to “collect convention requests from state legislatures and compel Congress to convene a meeting when enough states request it.”
“It’s time for the states to come together and responsibly monitor Washington,” he said.
In response, former Democratic Senator Russ Feingold of Wisconsin thinks it’s a terrible idea. In their new book, “The Constitution at Risk: The Unprecedented Effort to Rewrite Our Basic Law and What We Can Do About It,” Feingold and his co-authors write: “Despite the claims of legal certainty by convention supporters, the most important thing is that a meeting under Article V The questions about what it would be called and how it would work remain unresolved. The authors left no rules. In that uncertainty lies great danger and, perhaps, great power.”
Last year, Michael Louis Seidman, a distinguished professor of law at Georgetown University, in “From Parchment to Dust: The Case for Constitutional Skepticism,” wrote that a document drafted 235 years ago has changed the 21st century. He asked how important it could be in the 21st century. He thought it was long past its “sell by” date. In 1787, the country was small, concentrated only on the east coast, large parts of which relied on slave labor. The Constitution was drafted by a few privileged white men who thought that the new nation would forever be ruled by men like themselves.
The second constitutional convention is not a new idea. Almost 80 years ago, attorney Alexander Hehmeyer published a book called “Time for Change: The Proposal for the Second Constitutional Convention.” In fact, Article V offers two ways to invoke an agreement. The first, when two-thirds of both houses of Congress support it, and the second, when two-thirds of the states do it (34 of the 50 states). Of course, three-quarters of the states must then vote to ratify any proposed change or new document. Various proposals have been created every few years until today.
Despite the tremendous partisan divide that drives our current politics, most conservatives and liberals say they admire the Constitution and want to work to achieve its goals. But now, a serious movement has been designed to dismantle the Constitution and replace it with something else.
This is not a risk worth taking, and it is not because the Constitution is a sacred document. It’s just that it’s worked pretty well for the past 235 years. The problem is not the US Constitution. The problem is that judges have the final say on its meaning, and how they interpret the document.
We need look no further than the Supreme Court’s recent reversal of longstanding precedent. Among them are the judges’ narrow reading of constitutional protections for women’s rights last June by a majority in Roe v. When he overruled Wade; or when the same majority shut down the EPA’s efforts to control climate change; or when the court expanded the role of religion in the public sphere.
Another example is the inconsistent opinion a Trump-appointed federal judge in Florida gave to a request for a special master to look into classified and top secret materials the former president may have smuggled after he leaves office. Judge Aileen Cannon’s flawed reasoning is threefold.
First, he wrote that Donald Trump has executive privilege over the documents, even though he did not seek that ruling in his lawsuit. Executive privilege is not in the Constitution. But courts have recognized that it means executive branch conversations and materials can be withheld from Congress or the judiciary. In fact, the documents found at Mar-a-Lago are executive branch documents, requested by the executive branch. According to most legal scholars, Trump no longer has executive privileges as a former president. Second, he said Trump could suffer something called “reputational damage.” This is not a legal term. Such a doctrine does not require law enforcement to stop a criminal investigation because it might harm its reputation. He did so, stalling the Justice Department’s criminal investigation.
Finally, he said that as a former president, Trump is different from other Americans and faces different treatment from law enforcement. In stopping the criminal investigation, a special master determined that he may be above the law after reviewing all the materials. So much for the rule of law. Former Trump attorney general William P. Barr called his opinion “deeply flawed” and argued for an appeal. On September 8, the Justice Department formally appealed its decision to the 11th Circuit Court of Appeals.
The Constitution is not to blame here, the judges are.
Aquinna resident Jack Fruchtman is the author of “The Supreme Court and Constitutional Law,” now in its third edition, and “American Constitutional History,” now in its second edition.
