Ch. 3c: How to Call a Second Constitutional Convention

And make these reforms a reality

The way to make these reforms a reality is through a Second Constitutional Convention.

One key issue that may arise at a Convention is how to deal with “entrenched clauses”. An entrenched clause is a part of a constitution that is more difficult to amend or remove than other parts. For example, Germany’s Article 79 stipulates that “Amendments… to the principles laid down in Articles 1 and 20 shall be inadmissible.” Germany’s decision to entrench Article 1, its declaration of human rights, and Article 20, its declaration of it being a democratic state deriving its power entirely from the people, was a direct response to the autocratic horror of Nazi Germany.

For the US Constitution, there is an entrenched clause in Article 5 that states “. . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

How might the delegates of a Second Constitutional Convention deal with this entrenched clause? They could leave it be. Or, they could follow the precedent of the First Constitutional Convention. In 1787, the Framers threw out the entire Articles of Confederation and drafted our Constitution from scratch.

If the delegates of a Second Constitutional Convention followed the Framers’ precedent, all parts of the Constitution, including its entrenched clause, could be rewritten. Through this, all reforms argued for in this book are possible.

To enact these reforms, a Constitutional Convention is the end goal. Set your cynicism aside! How do we accomplish this goal? What are the necessary steps? What is the best political strategy? What about tactics? What about action?

To begin, the rules for amending our Constitution are denoted in Article 5. Amendments require the approval of two-thirds of both Houses of Congress (67 Senators and 290 Representatives) and become law after ratification by the Legislatures in three quarters of the States (38 of 50). A Constitutional Convention can be called by the Legislatures of two-thirds of the States (34 of 50).

In short, the State Legislatures are the key. The 7,386 people that comprise the 99 State Houses, Assemblies, Legislatures, and Senates have the power to call a convention (49 states have bicameral legislatures, while Nebraska has a unicameral legislature). These are the people who must be convinced to call a Convention.

Every State is different, and every legislative body is different, as shown in Table 3.1. The State Houses range in size from 40 representatives (Alaska) to 400 (New Hampshire). And the State Senates range in size from 20 senators (Alaska) to 67 (Minnesota). The Republican Party controls a majority in 28 State Houses and 29 State Senates (Nebraska’s unicameral legislature is counted as a Senate). The Democratic Party controls a majority in 21 State Houses and 20 State Senates. Emblematic of our hyperpartisan time, there are only two states in which one party does not control both legislative chambers: Pennsylvania and Alaska. (The Alaska State Senate is governed by a bipartisan coalition of 9 Democrats and 8 Republicans.)

Because neither party controls enough legislative bodies to call a Convention on its own, the coalition must be bipartisan.

Accordingly, the political strategy to convince each State and each legislative body to call a Convention must be tailored to its specific idiosyncrasies. The strategies that work in my home state of Washington may be wildly different from the strategies that work in New Hampshire or Louisiana. To any activists reading this, I hope you will use your knowledge of your home state’s idiosyncrasies to implement the most effective political strategy.

In general, I believe some strategies can be applied to most, if not all, states.

To call a Convention, we will need champions in the State Legislatures. These are people already in office who can introduce legislation, and who can talk to their colleagues. To the State Legislators reading this: Use your power! Talk with your colleagues! Use your political capital to call for a Convention!

To assist our champions on the inside, we need a campaign putting pressure on each legislature from the outside, in every state. Likely, we will need wealthy political donors to fund the campaign. It will be difficult to defeat the monied interests defending the broken status quo without having monied interests of our own.

We need to build a massive grassroots movement. To do this, we need to spread the word of constitutional reform, and how a Convention could be the way to fix our broken politics. This means talking to your friends, your family, your neighbors, your colleagues, and anyone who can cast a ballot. We need to build a popular majority, probably a supermajority, in support of a Convention. What if there were a national referendum on constitutional reform, and a clear majority voted in favor of reform? Facing such pressure, our Legislators would have no choice but to call a Convention. And if they do not, we need people to step up and run for office to replace those legislators who remain intransigent in their defense of the sclerotic status quo.

Calling a Convention is a daunting task. It could easily be the work of decades and generations. But political windows can open suddenly. If our political system breaks down in the aftermath of the 2024 election, there could be a once-in-a-generation, once-in-a-century opportunity for transformative political reform. The last time Constitutional reform of this magnitude was passed was during and immediately after the Civil War. The 13^th, 14^th, and 15^th Amendments were passed by the winners of the Civil War and imposed, literally at gunpoint, upon the losers.

The purpose of calling a Convention is to avoid such bloodshed. Further, this is not to say that such horrific violence is or will be necessary for constitutional change; rather, that the window for reform can open suddenly, and will, in all likelihood, not last long. If and when the window for reform happens, it will be important to have the reforms ready to go.

An incomplete list of actions you could personally take to call for a Convention:

-        contacting your legislator to ask them to support a Constitutional Convention;
-        mailing a physical copy of this book to your legislator;
-        talking in person about a Constitutional Convention to your friends and family, classmates and colleagues;
-        advocating for a Constitutional Convention on your social media;
-        convincing whatever social or political groups you are already a part of to support a Convention;
-        organizing with other Americans in support of a Convention;
-        marching in the streets, demanding our politicians act; and
-        organizing and participating in a general strike.

Yet, still, this seems insufficient.

I can only tell you what I have done, and what I plan to do. To the extent that writing a book counts as action, that is what I have done. I hope to continue working in the democracy reform space in some capacity, but my cynicism means my expectations are low. I hope people read this, and share it, and then use their creativity and energy to further the cause of constitutional reform.

Because successfully calling a Convention, and for it to be successful in creating a more perfect government, would be close to a miracle. The next steps are up to you.

If democratic government is government by the many, democratic action is action by the many.

So, what are you going to do?