McKay Cunningham: Constitutional conventions endanger American democracy

By McKay Cunningham

A thousand years from now, how will America be remembered? One filmmaker suggested future history books would emphasize three American creations: baseball, jazz and the Constitution. As a constitutional law professor, I have to agree. The U.S. Constitution truly has been a transformative document.

It divided power among three federal branches and 50 states. It codified certain fundamental rights and civil liberties, removing them from the tyranny of the majority. It replaced the rule of man with the rule of law. (That last one is easy to say, hard to appreciate. Before the Constitution, world governance was typified by strongmen, kings, sultans and war lords. After the Constitution, world governance shifted away from authoritarianism and toward representational democracies. All of Europe, much of Asia, India, a country of 1.4 billion, followed suit).

Even today, 236 years after its ratification, the Constitution remains a unifying symbol. It’s a document to which all lay claim. And with the rancor and divisiveness of today’s politics, unity and interconnectedness are increasingly rare. The Constitution is one of the few unifiers, perhaps the only remaining safe harbor, in an ongoing storm of political discord.

But now, that safe harbor is itself under threat. It’s called a “constitutional convention,” in which delegates from 34 states would meet to propose changes to the foundational document. It could possibly result in wholesale revision. In order to convene a constitutional convention, at least 34 states must submit an official petition, and this year Idaho is being pressured to join a handful of states that have already done so.

The Constitution has been amended 27 times, but never by a convention of the states. There is no precedent, no blueprint to guide such a convention. There are no rules for how each state’s delegates would argue, vote and propose changes. Does each state get one vote, or should votes be apportioned by population, giving more weight to California, New York and Texas, and less to Wyoming, Idaho and South Dakota? Would delegates horse trade: “I’ll agree to a balanced budget amendment, if you’ll agree to scrap the Second Amendment.” Without rules or precedent, many commentators foretell a “runaway” convention.

Notably, the push for a constitutional convention is not local. The American Legislative Exchange Council (ALEC) holds itself out as a membership organization for state legislators, but it principally lobbies for corporate America. ALEC has drafted and pushed laws that oppose climate change initiatives, limit voting rights, and promote pro-business, anti-consumer programs.

ALEC drafted the constitutional convention bill that Idaho legislators will likely take up in the coming weeks. ALEC’s bill calls for a convention to “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”

Proponents say it won’t be a “runaway” convention because each state’s delegates will be restricted by the language quoted above. But almost every word of the Constitution addresses the “power and jurisdiction of the federal government.” All of the Bill of Rights, for example, involve the power and jurisdiction of the federal government, including free speech, free exercise of religion, gun possession, unreasonable searches and seizures, due process, etc. It exposes the Constitution to complete revision, and it’s spearheaded by extreme groups indifferent to foundational American values.

There is a raft of compelling reasons to oppose a constitutional convention. They can’t all be listed in this short article. But it is not exaggeration to say that such a convention endangers American democracy.

McKay Cunningham currently directs on-campus experiential learning at the College of Idaho, where he also teaches Reproductive Rights and Constitutional Law. Prior to joining the College of Idaho, McKay was a law professor at Concordia Law School and then the University of Idaho. The idea of a constitutional convention will be debated from various perspectives, including Cunningham’s, at a City Club event Thursday.