Yes, the U.S. Constitution could be improved. The process in this Pa. House resolution isn’t a path forward | Opinion

December 18, 2019 6:30 am

The U.S. Constitution (National Constitution Center photo)

By Marc Stier

On Monday, the House State Government Committee passed a resolution asking Congress to call a constitutional convention, pursuant to Article V of the U.S. Constitution.

It’s not hard to understand the temptation to support this resolution. We live at a time of political division in Pennsylvania and in our country as a whole. We are all tempted to think about whether some change in our constitution might help us resolve our difficulties.

It’s useful to start thinking about these issues.

However, as a political scientist who has thought long and hard about our constitution, my own ideas on the matter are not terribly fixed, simply because the question is so difficult and the considerations that should weigh on us in examining changes in a constitution that has served us so well require the time for serious thought and substantial debate.

But no such debate has taken place in the run up to consideration of this resolution in the General Assembly. There have been no hearings and no detailed discussion of the proposed scope of amendments to be considered pursuant to this resolution.

That’s one reason not to act in haste.

Another is that all of us might be shocked by the results if Pennsylvania and a few more states join in this call for a constitutional convention.

It is apparent from this resolution that the supporters of it expect what are conventionally thought of as conservative implications for the federal government, leading to limits on federal spending, the power of the federal government, and the institution of term limits.

But the wording of the resolution leaves very much in doubt what might result from a constitutional convention that followed the program laid out in this resolution. The resolution calls for “fiscal restraint,” and that might mean giving the courts the power to hold down federal spending.

But it could also mean giving them the power to balance the federal budget by raising taxes much higher than they are today. Similarly, the ideal of limiting the power and jurisdiction of the federal government might seem to have conservative implications.

But there are many ways in which liberals would like to see the power of the federal government limited. For example, federal labor law legislation makes it impossible for Pennsylvania to take aggressive steps to support the formation of labor unions. A constitutional provision that would limit the federal government in this respect would be welcomed by many liberals.

So, the second reason to oppose this resolution is that even if a constitutional convention stayed within the parameters set by the resolution, no one, neither liberals nor conservatives, could have any confidence what might result from it.

And that leads to a third point: there is nothing in the Constitution to prevent a constitutional convention from being expanded in scope to issues not raised in convention calls passed by the state legislature. This could lead to a runaway convention, where virtually any part of the Constitution could be changed or eliminated.

If you think this is a fanciful objection, recall that this is exactly what happened during the convention in Philadelphia that created our current constitution.

Charged by the Congress to propose some amendments to the Articles of Confederation that would allow for it to raise revenues and better regulate commerce, the Founders created an entirely new government above the states, based on an innovative principle of “dual sovereignty” in which the people create a direct relationship between themselves and two different levels of government.

No barrier, and certainly not the provisions of HR 206, can stand in the way of a constitutional convention that sought to make radical changes in our form of government. Not even the rules for adopting amendments in the current constitution sets such barriers.

A new constitutional convention could follow the precedent of the Convention of 1787 and propose a new way for the states or the people of the country to adopt a wholly new constitution.

That means that a new constitutional convention could challenge and change every provision that many of us think are important to the framework of government, from the First, Second, and Fifth Amendments, to the requirement that each state have two senators, to the 14th Amendment.

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Those on the right who are pushing for a Constitutional Convention should recognize that what might come out of it is a repeal or substantial modification of the right to gun ownership they see in Second Amendment as well as new rights to abortion  or to a living wage or to health care or to an adequate and equitable education enshrined in our Constitution.

Some of us may want some changes to those provisions of the Constitution.

At a time when we are so divided, extremists are empowered, and political tempers are running hot, do we really want to take a chance that our, presumably good, ideas will come out of a Constitutional Convention while bad ideas are held back? Do we really want to begin a process in which radical changes to our Constitution can be made?

The prospect of a runaway convention is even more serious because of a fourth point: we have no clear idea how states would choose delegates to a convention, how states and citizens would be represented in a convention, and who would ultimately get to vote on items raised in a convention.

Perhaps a method for choosing those delegates will be found that brings to the task men and women of genius like the Founders. But it seems as likely that today a constitutional convention will be a forum in which demagogues and special interests representing both the left and right will have the greatest sway.

For all these reasons, more than 230 public interest, civil rights, government reform, labor, environmental, immigration, and constitutional rights organizations have publicly opposed calls for an Article V constitutional convention.

There is reason to think hard about whether some changes should be made to our constitution.  I urge you to take the lead in doing so.

If any state should be leading the way to re-thinking our constitution, it is Pennsylvania. But let us do that in a serious, deliberative, and thoughtful way, one that leads to well-designed amendments that our state can put forward using the process for amending the Constitution that has served us well since the Bill of Rights were adopted.

Marc Stier is the director of the Pennsylvania Budget and Policy Center, a progressive think-tank in Harrisburg that concentrates on state budget and policy issues.

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