We follow several news outlets and podcasts, on both the Left and Right, to get a well-rounded view of contemporary thought. One of our reads is a daily newsletter from the Washington Post called “The 5-minute Fix” by Amber Phillips. In the March 8 issue, the question is posed
Is it possible, and what would it take, to rewrite (not amend) the Constitution?1
Ms. Phillips answers the question in a number of ways and her answers are illustrative of both the complexities of this question and of the Progressive view of the Constitution as a “living document.”
Do Americans feel like democracy isn’t working for them?
Ms. Phillips starts with the statement
We’re getting into hypothetical territory here, but understandably: Americans on both sides of the political spectrum increasingly feel like democracy isn’t working for them.
We would be interested in the responses of our readers but we don’t have a sense that conservatives feel that democracy isn’t working for them, in part because conservatives tend to understand that we have a Republic, not a Democracy. Conservatives feel the problem is the increasingly authoritarian nature of the Biden Administration. So it’s not that Democracy isn’t working but rather that it’s being replaced by authoritarianism, which the Progressives are projecting on Trump, a topic we discussed in our post Authoritarians.
On the Progressive side, because they tend to think about “majority rules” democracy rather than the '“democratic processes in a Constitutional Republic,” they probably do think that democracy isn’t working for them because there is much in our Republic that is designed to avoid the tyranny of the 51%. They are especially frustrated about two presidents in our lifetime having won the electoral college without winning the popular vote.2 Since most people don’t understand the balance between the people and the States in the Constitution, it’s easy to mislead them with slogans about “one person, one vote” in Presidential elections. Remember, the Presidential election process is not direct democracy by design.
Amending the Constitution
Ms. Phillips then correctly answers the original question about “rewriting the Constitution” by stating that the only way to change the Constitution is to add an amendment, which is hard to do, given that it takes a supermajority in Congress and in the States. (Article V stipulates that it takes the vote of 2/3 of each house of Congress, followed by ratification by 3/4 of the State legislatures.) And it hasn’t been done since the 1990s. (That was the 27th Amendment, ratified on May 7, 1992 after having been proposed in 1789.3)
She then states that “How to rewrite the document isn’t really spelled out in the Constitution. But there are ways to work the system to do it.” The ideas she presents take us into the into the realm of the “living constitution.” (We’ll explain this in some detail in another post.)
First, it’s not that rewriting the Constitutions “isn’t really spelled out.” A process for “rewriting” the Constitution isn’t in the Constitution at all; only a process to amend it.
She does reference having a Constitutional Convention, which is the second of the two ways to amend the Constitution spelled out in Article V. A constitutional convention for proposing amendments can be called by 2/3 of the States, and the resulting amendments would need to be ratified by 3/4 the States.
The first method (described above) starts with Congress and ends with the States. This second method starts and ends with the States; Congress has no role. Since so many see Congress as broken, a process only involving the States is attractive.
Phillips correctly states that there hasn’t been a constitutional convention since 1787 when the Constitution was written. There has been a movement in recent years to get 2/3 of the State legislatures to call for an Article V Convention of the States (the second method in Article V) to hold such a convention. (We’ll discuss this in another post but, spoiler alert, it’s a bad idea.)
Unconstitutional Ways to “Amend the Constitution”
Then Ms. Phillips veers off into progressive ideas about changing the way the constitution operates through unconstitutional means. The first such unconstitutional foray is suggesting that “the Supreme Court could reinterpret the Constitution in a way that essentially rewrites it.”
What Phillips is proposing when she talks about the Courts “essentially rewriting” the Constitution is Judicial Activision. Progressives have for decades nominated (and confirmed) activist judges who rewrite the constitution to line up with contemporary liberal ideas. This is also called “legislating from the bench.” Progressives seem to have little or no concern about nominating activist Judges who will find ways to “read” the Constitution in light of modern liberal principles, as Ms. Phillips describes as a way to re-write it.
Conservatives are at a “disadvantage” in this arena because they tend to nominate Judges who will rule according to the actual text and the original meaning of the constitution rather than by promoting conservative positions.
Roe v Wade is a classic example of judicial activism, where a majority of the Justices (7-2) “discovered” a “right to privacy in the penumbra of the constitution” which they then used to justify a right to abortion as a privacy issue. Roe (and Casey) were overturned in the Dobbs decision by Justices who read the text of the Constitution without “discovering” rights not in the text.
She defends Judicial Activism by saying that ”some scholars argue” this. The link in her article to “some scholars argue” is to an article in The New Yorker entitled “The United States’ Unamendable Constitution.4” This longer article defends Judicial Activism and is worth the time if you want to understand this Progressive theory.
The Expert Class
We will make two comments on the notion of “some scholars” or “some experts.” Most issues are complex so there can be multiple positions on them. When a publication says the “some” scholars say something, you can be sure they are referring to the scholars with whom they agree (whether it is a progressive or a conservative publication).
The other comment would be that we as a society have become addicted to the idea that there are “experts” who have the definitive word on some subject. Once an “expert” has spoken, hardly anyone dares have a different opinion and those who do have a different opinion, regardless of how fact based it is, find themselves accused of “mis-information,” the Scarlet Letter of our day. The poster child of the “experts” is Dr. Anthony Fauci, who famously declared “I am the science.” (Look for our upcoming post on the “Expert Class.”)
The National Popular Vote
Phillips also presents a dangerous idea to do an end run around the constitution that is being pursued by some Progressive States called the “National Popular Vote.” This idea is that States should change the way they instruct the electors for their State so the instead of voting for the candidate who wins in their State,5 voting for the winner of the nationwide popular vote. The National Popular Vote is promoted as “One Person, One Vote.”
In essence, they seek to cancel the electoral college methodology in the Constitution that is an important part of being a Republic, thereby bringing us closer to being the pure democracy, tyranny of the majority, to which the Founders were so opposed.
We stated in A Constitutional Republic (Part 1):
The United States is a Constitutional Republic and not a Direct Democracy and this was an intentional decision by the authors of the Constitution. A Constitutional Republic contains many democratic processes in the election of Federal Officials and voting by citizens is a core value of our Republic. But the Founders also emphasized the important role of sovereign States, developing a marvelous hybrid process that capitalizes on the strengths of democracy while tempering its dangers.
The National Popular Vote is not technically unconstitutional, since the States select their electors “in such Manner as the Legislature thereof may direct.”
Article 2, Section 1, Clause 2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
But the National Popular Vote is a progressive organization that is attempting to fundamentally shift the way our elections were designed. As stated, while technically not unconstitutional, this change, if successful, would fundamentally change the nature of the American Republic. The Seventeenth Amendment changed the process of selecting of Senators from being a State function (Republicanism) to being by popular vote (pure Democracy).6 Changing the process for electing the President from being a State function (Republicanism) to also being by popular vote (pure Democracy) would complete the process of remaking the US into the pure democracy that inevitably leads to dictatorship. All authoritarians love democracy because it is so much easier to gain control than would be possible under the decentralization of a Republic.
This fringe idea has gained some traction and many States have passed legislation. Fighting this movement needs to be on the agenda of every freedom loving American.
Conclusion
Freedom is always very fragile and as the saying goes, requires eternal vigilance. Our marvelous Constitution provides ways to amend it, ways that are difficult by design lest the vagaries of popular sentiment produce irremediable changes. We need to fight any and all efforts to distort, ignore or render impotent the freedoms it has procured for us.
George W Bush (2000) and Donald J Trump (2016). There are also three presidents winning the electoral college but not the popular in the 1800s
In 1982, Gregory D. Watson, a college sophomore, discovered an amendment on Congressional salaries that had been passed by Congress but never been ratified by the States (only nine states had ever ratified it). The amendment wasn’t time limited and Watson launched a letter writing campaign that led to its ratification in 1992.
All States except Nebraska and Maine give all of the States electoral votes to the candidate receiving the most votes in that State. Maine and Nebraska use a different approach. Each State allocates two electoral votes to the candidate receiving the most votes in that State, and one electoral vote to the winner in each Congressional District in the State. This means that Maine and Nebraska occasionally allocate their electoral votes between the two candidates.
Read our post Freedom, Federalism and the 17th Amendment
Good article Jeff! I’m sure our Constitution is a very frustrating document for the liberals and progressives since they don’t understand that we are not a democracy. Also since our Constitution was created for a moral and religious people and cannot operate correctly apart from that, I can understand why they would want to rewrite it.