https://orcid.org/0000-0002-9575-1071
![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
Recently published, Senator Russ Feingold and Stanford scholar Peter Prindiville’s, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About it, criticizes a current Republican effort to call a constitutional convention under Article V of the U.S. Constitution. This paper argues that progressives, like these authors, and defenders of democracy are mistaken to defend the status quo of the U.S. Constitution. Rather, while the political stakes are certainly high, the effort to create a constitutional convention may be an opportunity for U.S. citizens across the spectrum to engage in constitutional politics aimed at altering the Constitution. A fully engaged citizenry and political elite—rather than one political side in a politically polarized society—would be healthier for the future of a successful modern democracy. This essay will engage Feingold and Prindiville‘s challenging argument opposing the Republican effort to call a constitutional convention under Article V which states that Congress, “on the application of legislatures of two-thirds of the several states, shall call a convention for proposing amendments.” Roughly 20 states of the 34 required have passed such resolutions. While there are 27 Amendments to the U.S. Constitution, Article V has never been used to call a convention. A second aim of the essay is to review the democratic critique of the Constitution, and argue that democratic reform is urgently needed. From the perspective of effective modern democracy, the goal of constitutional change should be seen as imperative: consideration should be given to alter the counter-majoritarian and unrepresentative features of the Constitution. These counter-majoritarian constraints in the U.S. Constitution are an institutional cause of “American Exceptionalism:” why is the United States more libertarian, with only a weak social democratic tradition, and always challenged to create efficient and representative policies? In short, I will argue that progressives must win the battle for democracy and make efforts to reform the Constitution.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How the People Can Correct It) (New York, NY: Oxford University Press, 2006), 165.
2 See Carl Hulse, “A Second Constitutional Convention? Some Republicans Want to Force One,” New York Times, September 4, 2022.
3 Beyond Hulse, see Bruce Veilmetti, “Russ Feingold sounds the alarm about the risk of a modern day Constitutional Convention,” Milwaukee Journal Sentinel, August 31, 2022; Nicholas Riccardi, “Conservative push to alter Constitution focuses on primaries,” AP News, https://apnews.com/article/2022-midterm-elections-campaigns-presidential-south-dakota-constitutions-3de00d1fb9748dcffc2e3875375a36f1 (accessed August 12, 2022); Rotimi Adeoye, “Democrats need to Win State Elections to Stop Republicans from Rewriting the Constitution, The Daily Beast, August 24, 2022; and earlier, Reid Wilson, “Conservatives prepare new push for constitutional convention,” The Hill, August 12, 2021.
4 Russ Feingold and Peter Prindiville, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It (New York, NY: Public Affairs, 2022).
5 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, #10 and #51 at https://guides.loc.gov/federalist-papers/full-text.
6 For instance: https://www.economist.com/united-states/2022/11/17/in-a-republican-house-investigations-and-fiscal-clashes-loom; https://www.cnn.com/2022/11/17/politics/house-republican-majority-reaction/index.html; https://www.wsj.com/articles/what-divided-government-means-for-washington-11668642809; https://www.nytimes.com/2022/11/08/business/wall-street-midterm-elections-gridlock-washington.html.
7 Louis Hartz famous explanation of American Exceptionalism is that the United States was born Lockean, lacked a feudal past, and lacked socialism, unlike Europe. Louis Hartz, The Liberal Tradition in America (New York, NY: Harvest Books, orig. copyright 1955, 1983), 3–32. This is among many formulations ranging from John Winthrop’s, “City on a Hill,” to Fredrick Jackson Turner’s Frontier Thesis as explanations of exceptionalism. See Mark Hulliung, ed., The American Liberal Tradition Reconsidered: The Contested Legacy of Louis Hartz (Lawrence, KS: University Press or Kansas, 2010), notably essays by King and Stears, and Nackenoff; Deborah L Madsen, American Exceptionalism (Jackson, MS: University Press of Mississippi, 1998).
8 Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York, NY: Cambridge University Press, 1991); William L. Niemi and David J. Plante, “The Great Recession, Liberalism, and the Meaning of the New Deal,” New Political Science 33 (2011): 413.
9 Daniel Lazare, The Frozen Republic: How the Constitution is Paralyzing Democracy (New York, NY: Harcourt Brace, 1996), 140.
10 See Stan Greenberg’s polling on climate mitigation: https://prospect.org/politics/crises-that-overturned-our-politics/.
11 On gridlock, see Sarah A. Binder “Going Nowhere: A Gridlocked Congress” Brookings, at https://www.brookings.edu/articles/going-nowhere-a-gridlocked-congress/ (accessed December 1, 2000); Larry Kramer persuasively argues that Madison by no means intended for these multiple vetoes to be undemocratic, as argued later in this essay that was understood to be the consequence at least since Woodrow Wilson Larry Kraemer, The People Themselves: Popular Constitutionalism and Judicial Review (New York, NY: Oxford University Press, 2004), 40. Scott James demonstrates that reforms can be notably effective under one party control; see Scott James, Presidents, Parties, and the State: A Party System Perspective on Democratic Regulatory Choice, 1884–1936 (New York, NY: Cambridge University Press) 2000.
12 A summary can be found at: https://en.wikipedia.org/wiki/Government_shutdowns_in_the_United_States.
13 Paul Krugman, “On the Inadequacy of the Stimulus,” New York Times, September 5, 2021; and an interview about his book, End This Depression Now!, Julian Brookes, “Paul Krugman on How to Fix the Economy—and Why It’s Easier Than you Think,” Rolling Stone, May 2, 2012, https://www.rollingstone.com/politics/politics-news/paul-krugman-on-how-to-fix-the-economy-and-why-its-easier-than-you-think-191898/.
15 Woodrow Wilson, Congressional Government, A Study in American Politics (Gloucester, MA: Peter Smith, with an intro. by Walter Lippman, orig. pub. 1885, 1973); on the filibuster, see Lindsay Chervinsky, “How did the Senate end up with Supermajority Gridlock?” Governing.com, https://www.governing.com/context/how-did-the-senate-end-up-with-supermajority-gridlock (accessed October 13, 2021).
16 Feingold and Prindiville, The Constitution in Jeopardy, 56–7.
17 As will be argued in the conclusion, this division by Feingold and Prindiville underestimates the degree to which the setting of the Constitutional or fundamental rules is also a fundamentally political process.
18 Feingold and Prindiville, The Constitution in Jeopardy, 5–6.
19 Hamiltonian frame as Hamilton was the proponent of the federal elite control of the amendment process. The authors offer a terrific overview of these arguments at the Constitutional convention, between George Mason (proponent of the state requested convention approach in Article V) and Alexander Hamilton. In Ibid., 25–6, 42–3, 45–6.
20 Ibid., 69–110. There is also the appropriate nod to non-formal constitutional change as argued for by Bruce Ackerman, in We the People; Ibid., 60.
21 Feingold and Prindiville, The Constitution in Jeopardy, 84–92; Levinson, Our Undemocratic Constitution, 162.
22 Feingold and Prindiville, The Constitution in Jeopardy, 25–6.
23 Ibid., 57.
24 Ibid., xviii–ix.
25 Mark R. Levin, The Liberty Amendments: Restoring the American Republic (New York, NY: Threshold Publishers, 2013). While several of these proposed amendments are very conservative (e.g., limiting the commerce power, a balanced budget amendment, state nullification of federal laws), a few might be embraced by progressives such as term limits for Supreme Court justices and restriction of judicial review.
26 Ibid., 107–12.
27 Ibid., 119–22.
28 Ibid., 95–6, 22–124, 127.
29 Despite the caution of Feingold and Prindiville, the ratification requirements are a high bar, making constitutional changes from a “run-away” convention or any amendments that cannot attract broad support unlikely. This requirement also makes democratic change difficulty.
30 Ibid., 161.
31 Ibid., xviii–ix., ch. 6.
32 Ibid., 126. The notable example is the 27th Amendment which provides that Congressional members’ compensation cannot change without an intervening election before the change is implemented; it was proposed in 1789 and ratified in 1992.
33 Ibid., 26–7.
34 Ibid., 64, 172.
35 Ibid., 60.
36 Ibid., 195. Beyond these problems however, the fifty state constitutions offer many innovations, including occasional conventions, by which federal constitutional change can be informed. Jamelle Bouie, “There Is a Way to Break Out of Our Constitutional Stagnation,” New York Times, November 18, 2022; Sanford Levinson, Framed: American’s 51 Constitutions and the Crisis in Governance (New York, NY: Oxford University Press, 2012); and James Dinan, The American State Constitutional Tradition (Lawrence, KS: University Press of Kansas, 2006).
37 Feingold and Prindiville, The Constitution in Jeopardy, 196.
38 Ibid., 64, 180.
39 Ibid., 126, 137.
40 Ibid., 165–7.
41 Lazare, The Frozen Republic, 9.
42 Contemporary democratic critics of the Constitution are all concerned to focus a discussion on how to improve governance—and overcome constitutional worship. Levinson, Our Undemocratic Constitution, 9, 17; Lazare, The Frozen Republic, 9; Dahl, 3.
43 Matthews, ch. 2.
44 Matthews, 19–24. Matthews also nicely outlines Jefferson’s answers to Madison, that the dead have neither power nor right, and that property is the product of positive law; Kraemer, The People Themselves, 45–9.
45 See Clyde W. Barrow, More than a Historian: The Political and Economic Thought of Charles A. Beard (New Brunswick, NJ: Transaction Publishers, 2000), 102.
46 Matthews, 77–81.
47 Matthews, chs. 2–3; Alexis de Tocqueville, Democracy in America (Anchor Books, 1969, trans. By J. P. Mayer), 59–60.
48 Ellis, 3–23. As argued by Kraemer, The People Themselves, 242–4. Also see Bruce Ackerman, We the People: Foundations (Cambridge, MA: Belkknap Press of Harvard University Press, 1991), 174.
49 Lazare, The Frozen Republic, ch. 2; Orren, Belated Feudalism, 8.
50 Lazare, The Frozen Republic, ch. 1, 215–7; Woodrow Wilson comments on the same evolution in his introduction to Congressional Government, 55.
51 Barrow, More than a Historian, 95, 132; Parrington, intro., ix.
52 Barrow, More than a Historian, 109. It is not difficult to extend that history to the workers’ movements of the 1930s and the student movements of the 1960s (and subsequent political movements) in American political development.
53 Smith, The Spirit of American Government: A Study of the Constitution, Its Origins, Influence, and Relation to Democracy, 8.
54 Ibid., 7.
55 Ibid., 9.
56 Ibid., 3.
57 Ibid.,10.
58 Ibid., 17.
59 Ibid., 22–3.
60 Ibid., 41.
61 Ibid., 85.
62 Ibid., 11. See Barrow’s summary, 106–7.
63 Wilson, Congressional Government, chs. 1–3.
64 Lazare, The Frozen Republic, 142–3.
65 Wilson, as quoted by Lazare, 145.
66 Lazare, The Frozen Republic, 145.
67 Lipman, 13–5. Levinson points to similar arguments aimed at further empowering the House by James Sundquist, 65–9.
68 Lazare, The Frozen Republic, 140.
69 John R. Commons, Proportional Representation (New York, NY: The MacMillan Co., 2nd ed. with chapters on the initiative, the referendum, and primary elections, 1907). Commons was active in the American Proportional Representation League.
70 Lazare, The Frozen Republic, Ch. 6.
71 Ibid., 155–6.
72 Lazare, regarding Bryce, 151.
73 Lazare, regarding Croly, 154.
74 Justice Miller, as quoted by Lazare, 141.
75 Barrow, More than a Historian, 109.
76 Ibid., 111.
77 William L. Niemi and David J. Plante, “The Antecedents of Resistance: Populism and the Possibilities for Democratic Globalizations,” New Political Science 30 (December, 2008), 441–4.
78 Barrow, More than a Historian, 114, 128.
79 Ibid., ch. 5.
80 Barrow, More than a Historian, 113–5.
81 Ibid., 116.
82 Ibid., 127–8.
83 Charles Beard, An Economic Interpretation of the Constitution of the United States (New York, NY: The Free Press, 1986), 156–7.
84 Barrow, More than a Historian, 131; ch. 5.
85 Beard, An Economic Interpretation, 176.
86 See Ed Greenberg, “Class Rule under the Constitution,” in How Capitalistic is the Constitution?, ed. Robert A. Goldwin and William A. Schambra (Washington, DC: American Enterprise Institute for Public Policy Research, 1982), 22–48. Several other essays in the collection have similar conclusions.
87 Niemi and Plante, “The Great Recession,” 413–27.
88 On the dynamics of the rise and fall of judicial regimes, see Jack Balkin and Sanford Levinson, “Understanding the Constitutional Revolution,” Virginia Law Review (October, 2001), 1045.
89 Dahl, 37–8.
90 See Orren, Belated Feudalism, chs. 2–3.
91 Dahl, 37.
92 See note 89 above.
93 Dahl, 33–7.
94 Levinson’s data is pre-Great Recession (2008). The subsequent disproportionate distribution of federal stimulus money became a controversy in that context: http://archive.nytimes.com/www.nytimes.com/interactive/2013/03/11/us/politics/democracy-tested.html?_r%25E2%2580%25B0=%25E2%2580%25B00. Though the funding per capita varied for Covid relief funds (affected by unemployment health care structure, types of industry), even on a per capita basis; however, the allocation methodology more often than not favored small states with Wyoming, Vermont, Alaska, and the Dakotas rounding out the top 5. https://www.pgpf.org/blog/2021/04/why-do-states-receive-different-amounts-of-federal-covid-aid; and https://www.pgpf.org/understanding-the-coronavirus-crisis/coronavirus-funding-state-by-state#why-do-some-states-receive-different-amounts.
95 Levinson, Our Undemocratic Constitution, 60.
96 Andrew Jackson in 1824 (to John Quincy Adams); Samuel Tilden in 1876 (to Rutherford B. Hayes); Grover Cleveland in 1888 (to Benjamin Harrison); Al Gore in 2000 (to George W. Bush); Hillary Clinton in 2016 (to Donald J. Trump). https://history.house.gov/Institution/Electoral-College/Electoral-College/#:∼:text=Five%20times%20a%20candidate%20has,in%202016%20(to%20Donald%20J.
97 Dahl, 81.
98 Ibid., 81–2.
99 Ibid., 82.
100 Levinson, Our Undemocratic Constitution, 91. Notably, this happened with elections of 1800 and 1824.
101 Levinson, Our Undemocratic Constitution, 92–4.
103 Feingold and Prindiville, The Constitution in Jeopardy, 102–3.
104 Lazare, The Frozen Republic, 289–97.
105 For instance, Alison Durkee, “Most Americans Think the U.S. Will Have More Political Violence and Be Less of a Democracy,” Forbes, September 5, 2022, https://www.forbes.com/sites/alisondurkee/2022/09/05/most-americans-think-the-us-will-have-more-political-violence-and-be-less-of-a-democracy-poll-finds/?sh=4ae43ee14668.
106 Dahl, 141–57.
107 Levinson, Our Undemocratic Constitution, 174–5.
108 Dahl, 76–9.
109 Levinson, Our Undemocratic Constitution, 91.
110 Representative Jamie, Raskin, “Raskin Warns of Electoral College Disaster,” https://politicalwire.com/2022/09/11/raskin-warns-of-electoral-college-disaster/.
112 https://www.pewresearch.org/fact-tank/2022/08/05/majority-of-americans-continue-to-favor-moving-away-from-electoral-college/; this is consistent with 2020 Gallup polling as well. https://news.gallup.com/poll/320744/americans-support-abolishing-electoral-college.aspx. The low point for support for the measure over the past decade is predictably at the time of the 2016 election.
113 Levinson, Our Undemocratic Constitution, 130.
114 Ibid., 130–7.
116 See https://protectdemocracy.org/work/electoral-count-act/, and https://www.collins.senate.gov/imo/media/doc/one_pager_on_electoral_count_reform_act_of_2022.pdf.
117 https://www.americanprogress.org/article/electoral-count-act-reform-is-now-within-reach/; https://www.cato.org/commentary/simple-reforms-could-prevent-election-chaos?gclid=EAIaIQobChMIsPLG6_jH-wIVwRPUAR37-AXQEAAYAiAAEgKhZfD_BwE; https://www.nationalpopularvote.com/written-explanation; https://www.brookings.edu/policy2020/bigideas/its-time-to-abolish-the-electoral-college/.
118 On Roosevelt’s options see Alpheus Thomas Mason and Donald Grier Stephenson, Jr., American Constitutional Law: Introductory Essays and Selected Cases (Upper Saddle River, NJ: Pearson, 14th ed., 2005), 251–5. There multitudes of accounts on how Roosevelt mishandled and misjudged the politics of the Judicial Procedures Reform Bill of 1937, though a century earlier Andrew Jackson was successful in appointing two additional justices as he left office. Nevertheless, such efforts are fraught with political danger. See William Leuchtenburg, Franklyn D. Roosevelt and the New Deal (New York, NY: Harper Torchbooks, 1963), 231–7; and James MacGregor Burns, Roosevelt: The Lion and the Fox (New York, NY: Konecky & Konecky, 1956), 291–315.
119 See Balkin and Levinson’s discussion, “Understanding the Constitutional Revolution,” 1045.