Article V of the U.S. Constitution provides two methods for amendment. The first method requires a two-thirds vote of both houses of Congress followed by ratification by three-fourths of the states. So far, that has been the only method utilized for amendments. Alternatively, two-thirds of the states can call for a constitutional convention, which, in turn, can propose amendments to be ratified by three-fourths of the states.
Republican calls for a convention
In the face of a growing call by certain conservative Republican groups for a constitutional convention, some Democratic state legislatures have withdrawn or are considering withdrawing their own calls for such a convention from the last century or earlier. By some counts, more than the requisite 34 states have outstanding calls for a convention, although old and seeking amendments on varying topics.
Apparently, some Democratic-controlled states are worried that a conservative push for a convention, coupled with the Republican success in the recent election, could result in shifting the Constitution even further right than under recent Supreme Court decisions.
Rather than cowering from the possibility of a convention, Democrats and liberals should embrace a convention, not only to undo Supreme Court decisions overturning Roe v. Wade, strengthening gun rights, and creating Presidential immunity, but also to codify their own values.
The need for change
The core of the Constitution is 235 years old, and 19 of its 27 amendments are over 100 years old. The last significant amendment was ratified over 50 years ago. For centuries, federal judges have twisted and mangled the words of the Constitution to reach a desired political result. Particularly under the current Supreme Court, the justices are now reading the Constitution to mean something different from what justices throughout the 20th Century have construed the same words to mean.
Recent events have exposed fissures in the Constitution that need to be shored up to prevent a runaway President and another January 6 insurrection. Congress, too, has devolved into a hyper-partisan battlefield where gamesmanship and party allegiance take priority over the betterment and welfare of our country, resulting in inertia and stagnation.
Proposed improvements
An extensive overhaul of the Constitution could expand personal rights and liberties by, for example, expressly stating a right to privacy and to abortion, by granting amnesty and citizenship to all undocumented immigrants domiciled in the United States on a certain date, by thwarting gerrymandering, by creating a freedom of safety and a ban on assault weapons that would require the government to crack down on mass shootings, and by eliminating capital punishment.
Congress could be reduced to a single chamber of 100 members serving four-year terms with a cap of 16 years. Super-majority votes and filibusters can be ended. Powers to impeach should be clarified to allow proceedings even after resignation or expiration of the term of office.
As to the President, the Electoral College would be abolished and the President and Vice President would be elected by receiving the most popular votes throughout the country. Presidents would enjoy no immunity from criminal prosecution and could not pardon themselves or any of their co-conspirators.
Elections of the presidential team and of Congress should be staggered so that every two years the election of one branch would serve as a mid-term check on the other. A new Commission on National Elections and Compensation will run all national elections and certify the results to avoid the chaos of recent elections.
Requirements and limitations should be imposed on the federal judiciary for the first time. Federal judges must be attorneys and at least 45 years old. They can serve for a maximum of 25 years total at any level of the court system or up to age 75, whichever occurs first. Supreme Court justices will be subject to the same ethical rules as district and circuit court judges.
No longer will presidents appoint and the Senate confirm judges. Rather, a new Judicial Appointment Council, whose seats will be allocated among appointments by the Judicial Conference of the United States, Congress, and the President, will compile a list of highly qualified candidates for judgeships. The Commission on National Elections and Compensation will select judges from that list to minimize political machinations in a judicial system that is supposed to be fair and unbiased.
Opportunity for change
A constitutional convention would present an opportunity to enshrine in the Constitution the tenets, morals, and ethics of a kinder and fairer society and government than the ones desired by such groups as MAGA and Project 2025.
Make America sane again.
Richard S. Order is a trial lawyer at Updike, Kelly & Spellacy in Hartford. His recent book, “Reimagining a More Perfect Union: A Better Constitution for Modern America,” proposes a dramatically new Constitution.