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We the People: Is it time to rewrite the U.S. Constitution?

Sept. 11, 2022 Updated Thu., Oct. 20, 2022 at 3:40 p.m.

Painting from 1856 by Junius Brutus Stearns of George Washington at the Constitutional Convention of 1787.
Painting from 1856 by Junius Brutus Stearns of George Washington at the Constitutional Convention of 1787.
By Jim Camden For The Spokesman-Review

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: What is the supreme law of the land?

Since 1789 when it took effect, the U.S. Constitution has been the supreme law of the land, setting up a republic with powers and responsibilities divided among three branches of government.

The Constitution – drafted, debated and adopted at a convention of 55 men from the original 13 states – includes Article V, the rules on how to make changes to the original plan. It was something the Founding Fathers quickly realized would be necessary just to get the Constitution ratified.

Ten amendments guaranteeing certain individual freedoms, now known as the Bill of Rights, were passed by Congress and sent to the states in the first two years of the republic.

During the next 200 years, another 16 amendments were adopted through the same process, which requires approval by two-thirds of both branches of Congress and ratification by three-fourths of the states, almost always through their legislatures. One took a slightly different route, with the congressional approval ratified by a series of special conventions in three-fourths of the states.

Some made the republic more democratic by giving more people the right to vote or requiring U.S. senators to be elected by a state’s voters rather than its legislators. One abolished slavery. Another allowed for an income tax.

One changed the way the vice president is elected, while others changed the day when a president takes office, limited a president’s tenure to two terms or gave residents of the District of Columbia members of the Electoral College. One outlawed alcohol while another ratified 14 years later made it legal again.

Every year a wide range of other possible amendments are proposed, but never get very far in Congress.

But Article V provides another way to amend the Constitution. It requires Congress to call a convention to consider amendments if it gets a request from two-thirds of the states. Delegates to that convention would debate changes, and if a majority agrees on one or more amendments, they would become law if three-fourths of the state legislatures approve them. That’s never happened. Some people say it should be tried.

“Our constitutional system is fractured, perhaps broken,” Clay S. Jenkinson, a historian and founder of the Theodore Roosevelt Center at Dickinson State University wrote in a recent article for the Governing.com that argues the time has come for an Article V convention to address the problems of a nation approaching its 250th anniversary.

When written, the Constitution had no representation by women, Blacks, Native Americans or average white men who had to work for a living, Jenkinson notes. The Founding Fathers lived in a world where medical treatment included using leaches, homes were lit with whale oil lamps, railroads hadn’t been invented and the internal combustion machine was a century in the future.

“We all know that our Congress is nearly paralyzed, corrosively partisan and unrepresentative of a large percentage of the American people,” he wrote. “The two parties are so profoundly addicted to power that they would rather have the country suffer, if they can blame it on the opposition, than work to solve our problems.”

Citizens for Self Governance whose leadership includes Mark Meckler, the founder of Tea Party Patriots, and Eric O’Keefe, a founder of the U.S. Term Limits organization, as its board chairman, has formed a foundation to urge state legislators and others to push for a convention of the states that would restrict the power of the federal government and “protect our liberty from the abuses in Washington, D.C.”

Rep. Jodey Arrington, R-Texas, introduced a resolution in July calling for just such a convention to propose constitutional amendments, arguing that enough states have already approved resolutions for some sort of “Fiscal Responsibility” amendment. The bill has not been scheduled for a hearing as yet.

Others warn an Article V convention could result in a dangerous rewriting of the Constitutional rights as we know them, with no limits on the changes that could be proposed once the delegates meet.

Former U.S. Sen. Russ Feingold, D-Wis., co-author of “The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It” said some groups calling for such a convention have proposed a national “court of the union” that could overrule the U.S. Supreme Court, or amendments that would limit the federal government’s ability to protect the environment or workers’ rights.

The effort could result in a “runaway convention,” Feingold said at a recent symposium at Marquette Law School. The Constitution has no rules on how delegates would be chosen or how they would vote.

“There isn’t anything to limit them,” Feingold said. The convention “is an institution unto itself.”

Supporters of the convention have the help of the conservative American Legislative Exchange Council in drafting resolutions, as well as Florida Gov. Ron DeSantis and former U.S. Senator and GOP presidential candidate Rick Santorum, he added.

Calls for a constitutional amendment convention are not new, said Cornell Clayton, director of the Foley Institute for Public Policy and Public Service at Washington State University. During the Progressive Era at the end of the 19th century and beginning of the 20th, supporters of such reforms as women’s suffrage and direct election of U.S. senators were pushing for a convention until Congress acted to pass those amendments through the other method.

In response to President Franklin Roosevelt’s New Deal and the expansion of the federal government, some conservatives began talking about a convention for amendments to rein in that growth, Clayton said.

Now there are calls from some conservatives and liberals for a convention for amendments they support but can’t get through a closely divided Congress.

Those on the left might support statehood for the District of Columbia or Puerto Rico, abolishing the Electoral College, eliminating the filibuster, reforming campaign finances or redistricting, limiting the Second Amendment or ensuring abortion rights or same-sex marriage.

Those on the right might want to limit the powers of the federal government, require a balanced federal budget, outlaw abortion or same-sex marriage, allow prayer in schools, strengthen and expand the Second Amendment and abolish birth-right citizenship, he said.

The historic problem of changing the Constitution through an Article V convention remains in the math the Founding Fathers set down, Clayton said. The requirement for two-thirds of the states’ legislatures to ask for the gathering means at least 34 would have to make the formal request, and three-fourths, or 38 states, would have to approve any change a convention proposes. In the narrowly divided America of today, that’s going to be difficult to achieve. There is a value in discussing Article V, he added.

“It forces Americans to think about how our institutions are operating” Clayton said. That could prompt people to set aside the “sacred view” of the Founding Fathers and the text of the Constitution for a public discussion of ways to improve it.

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