The midterm elections have ended, the Republicans have held onto the Senate, and the Democrats will take over the House in January. The bluest state in the nation easily re-elected a moderate Republican governor, Charlie Baker, and a liberal Democratic senator, Elizabeth Warren.
Now what? Will we enter a new phase of governance, when the polarization that has existed in this country at least since the 1970s and the Watergate era comes to an end? That is unlikely.
To take but one example, President Trump claimed during the recent campaign that he could end by executive order “birthright citizenship.” This is the principle embodied in the 14th Amendment, that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This would be an attempt to forestall, even end, undocumented immigrants from coming to the U.S. to have their babies.
Most constitutional scholars disagree with the president. They say that neither he by executive order nor the Congress by law can overcome the command of the amendment. As conservative lawyer George T. Conway III and liberal former acting Solicitor General of the U.S. Neal Katyal, writing together recently in the Washington Post, stated, the president is “wrong — a constitutional amendment would indeed be necessary to revoke birthright citizenship.”
Even if the president is wrong and a constitutional amendment is necessary, for several years now, under the media radar, a movement promoted mostly by conservatives has been underway to make drastic, perhaps even radical, changes to the Constitution. Its Article V notes that an amendment may be added in one of two ways: Two-thirds of both houses of Congress pass it and then three-quarters of the states must ratify it. As a high bar to meet, this has occurred only 27 times since 1787.
And 12 of them were added in the first 15 years of our Republic, while two eliminate one another: Prohibition (the 18th) and its repeal (the 21st). This brings the number of major changes since 1804 to just 13.
The second way is by constitutional convention. It requires that two-thirds of the states, that is, 34 of them, issue a call to convene one. Even if it were to occur, three-quarters of the states must still ratify its proposals.
A national organization known as the Convention of States (COS), which is housed in Houston, has long advocated for such a convention. A bevy of very conservative politicians, like Texas Governor Greg Abbott, Florida Senator Marco Rubio, Nebraska Senator Ben Sasse, and Florida Governor-elect Ron DeSantis have endorsed its goals. Joining them are very conservative pundits like Sean Hannity of Fox News, commentator Mark R. Levin, and former vice presidential candidate Sarah Palin.
Tea Party co-founder and current president of the COS Mark Meckler has stated that a convention called by the states “was specifically intended for a time like this, when the federal government gets out of control and when the Congress won’t deliver to the people what they want.”
This has not happened since 1787. In the very hot summer of 1787 in Philadelphia, James Madison, George Washington, Benjamin Franklin, Alexander Hamilton, and many other men drafted the document that we admire. We regard them in the American constellation of leaders as our Founding Fathers. The result: The American Constitution is the oldest continuous constitution in existence throughout the world today.
The danger is that a constitutional convention could well open the entire document for revision, renewal, or deletion. The COS website, conventionofstates.com, claims that 12 states have passed resolutions issuing a call for a convention and another 18 have passed such a resolution in one house, though Nebraska, which passed it and has a single-house legislature, should more accurately be added to the 12 to make 13. The Massachusetts assembly, the General Court, has taken no action to date.
In any event, the COS count for a convention is 30, four shy of what is needed should both houses of each state assembly agree. But to do what?
Here, the Constitution is silent. For some, the goals are clear: to mandate federal balanced budgets, to require terms limits for U.S. senators, representatives, and Supreme Court justices, and to repeal the 17th amendment, allowing for the direct election of U.S. senators rather than their election by state assemblies. Not all state resolutions agree on what it should do. It may take a Supreme Court decision, should it get that far, to resolve whether all resolutions have to focus on the same issue. One starting point may well be none of the three noted above.
Or it could well be a proposal to eliminate “birthright citizenship,” a step that would undermine the very foundations of the 14th Amendment and its promise to those born here that they possess, in the words of Chief Justice Earl Warren, writing in 1958 in Trop v. Dulles, “a fundamental right.” He concluded, “The provisions of the Constitution are not timeworn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation.” We should remember that every time we want to tinker with the Constitution.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.