Resist a Constitutional Convention — and Gillibrand’s Skullduggery

A New York Times story  last week reports fears by Democratic politicians of calls by some leading Republican politicians for a new Constitutional Convention. This is distinct from the customary means by which the Constitution has been amended: proposals for a single amendment originating in Congress, then ratified by three-fourths of the states.

A convention, by contrast, must be initiated by two-thirds of the states and would inevitably be open-ended: the Constitution, while authorizing such a mode of amendment, sets no limits to what its agenda could entail. Hence California Democratic state senator  Scott Wiener, for one, warns of the danger of a “runaway convention,” in which a convention adopted to consider one proposed amendment (such as a balanced-budget amendment, favored by Republicans) could wind up adding other amendments of a sort that his party fears (say, restricting abortion access or otherwise restricting civil rights).

Since the Constitution sets no time limit on the dating of calls for a convention (i.e. a state call for a convention from 150 years ago would still be in play today), the danger of a radical rewriting of the Constitution cannot be dismissed. It is on account of the danger of an amendment being enacted based largely on long-ago state ratifications that it has become customary to include time limits in them. Donald Trump, for one, favors an amendment that would eliminate “birthright citizenship.” So Weiner  introduced legislation last Monday that would rescind the state’s seven previous calls for a constitutional convention, the first such move since Donald J. Trump’s election to a second term.

It is ironic  that Democrats should be expressing fears about radical changes in our national charter, since several prominent liberal-leaning scholars, including Berkeley law dean Erwin Chemerinsky, Duke law professor Neal Siegel, and Harvard government professors Steven Levitsky and Daniel Ziblatt, have published books in the last few years depicting the Constitution as outdated, undemocratic, and hence in need of radical revision. Chemerinsky is among those now warning of the dangers of a new convention. Apparently, his attitude changes with his current estimate of the likely direction a convention would take.

Gillibrand Seeks a Work-Around

But another prominent Democrat, New York Senator Kirsten Gillibrand, aims to amend the Constitution by an even simpler mode. She is trying to persuade President Biden to “rescue his legacy,” as the Times reports, by adding the century-old Equal Rights Amendment, which guarantees “sex equality,” to the document simply by declaring that a provision in the proposed amendment that set a seven-year time limit for ratification when Congress approved it in 1972 (and which expired before the required number of states voted to ratify it) is unconstitutional.

So according to Gillibrand, all Biden need do to enact the amendment, given that three states voted for it after the deadline, is phone the National Archivist and tell him to add the ERA to the Constitution as our 28th Amendment!  (Gillibrand has enlisted Hillary Clinton to her campaign, asking her to speak to the archivist on its behalf. Additionally, in November, 45 senators, including majority leader Chuck Schumer, wrote the President to urge him to take the action that Senator Gillibrand has called for.)

In reality, the ERA was rendered superfluous by a series of Supreme Court decisions that effectively guaranteed women’s right to equality under the 14th Amendment. (This in addition to the guarantee in the 1964 Civil Rights Act).

But the real motive behind Gillibrand’s proposal — which is supported by numerous other feminist activists — is believed to be as a backhanded way of restoring the Constitutional right to abortion, which the Court overturned in its 2022 Dobbs decision. This has long been a goal of pro-abortion activists, since a right to abortion lacked any grounding in the document’s text.

While Gillibrand acknowledges the likelihood that the Presidential move she advocates would be stricken down by the courts, she responds that she and other feminists can’t just wait around for current Justices to die. And she apparently recognizes that a new move to get the ERA ratified by the states is unlikely to succeed.

Both the calls for a new convention and Gillibrand’s recommendation are thoroughly unwise. On the one hand, Democrats are correct to fear a runaway meeting that could rewrite critical provisions of the Constitution, the main text of which was the product of months of careful deliberation by a remarkable group of statesmen. On the other hand, Gillibrand’s notion displays such a thoroughgoing disregard for the Constitution — enabling the President to amend it effectively by his own fiat — as to exhibit  an even greater disrespect for our legal order.

One must hope that our Presidents and Congressmen will display a sufficient appreciation of the benefits that our Constitution provides as to resist the two sorts of proposal for amendment — one Constitutional but potentially ruinous (Republican calls for a new convention), the other (that of Gillibrand and Clinton) simply lawless. Those strongly believing in the need for particular amendments should rely on the difficult, but orderly, alternative procedure that has been relied on for all of our existing amendments.

David Lewis Schaefer is Professor Emeritus of Political Science, College of the Holy Cross.

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