Should the United States have a new Constitution?

The question posed in the title recently surfaced in the New York Times. A conservative House Republican from Texas, Jodey Arrington, introduced legislation directing the archivist of the U.S. to “tally applications for a convention from state legislatures and compel Congress to schedule a gathering when enough states have petitioned for one.” 

“It is time to rally the states and rein in Washington responsibly,” he was quoted as saying.

In response, former Democratic Senator Russ Feingold of Wisconsin thinks this is a terrible idea. Feingold and his co-author, in their new book, “The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do about It,” write, “Despite convention proponents’ claims of legal certainty, the most important questions about how a convening held under Article V would be called and how it would function are unsettled. The framers left no rules. In this uncertainty lies great danger and, possibly, great power.”

Last year, Michael Louis Seidman, a distinguished professor of law at Georgetown University, in “From Parchment to Dust: The Case for Constitutional Skepticism,” asked how a document crafted 235 years ago could have relevance to us in the 21st century. He presumed that long ago it passed its “sell-by” date. In 1787, the country was small, huddled solely on the East Coast, with large parts relying on slave labor. The Constitution was crafted by a few privileged, landed white men who thought that the new nation would forever be governed by men just like them.

A second constitutional convention is not a new idea. Almost 80 years ago, attorney Alexander Hehmeyer published a book titled “Time for Change: A Proposal for a Second Constitutional Convention.” In fact, Article V provides two ways to call a convention. The first is when two-thirds of both houses of Congress advocate it, and the second is when two-thirds of the states do (34 of the 50 states). Of course, three-fourths of the states must then vote to ratify any proposed changes or a new document. Several proposals have arisen every few years to the present time.

Despite the colossal partisan divide that drives our current politics, most conservatives and liberals claim they admire the Constitution, and want it to work to achieve their goals. But now, a serious move is designed to undo the Constitution and replace it with something else. 

This is not a risk worth taking, and it’s not because the Constitution is a sacred document. It’s that it has worked pretty well for the past 235 years. The problem is not the U.S. Constitution. The problem is with the judges who have the final say about its meaning, and how they interpret the document.

We need look no farther than the Supreme Court’s recent reversal of long-held precedents. These include the justices’ cramped reading of constitutional protections of women’s rights last June when a majority overruled Roe v. Wade; or when the same majority halted efforts by the EPA to control climate change; or when the court expanded the role of religion in the public sphere.

Another example is the recent incoherent opinion by a Trump-nominated federal judge in Florida granting the former president’s request for a special master to review the classified and top-secret materials he may have illegally taken to Mar-a-Lago after he left office. Judge Aileen Cannon’s faulty reasoning is threefold. 

First, she wrote that Donald Trump possesses executive privilege over the documents, even though he did not seek this ruling in his lawsuit. Executive privilege is not found in the Constitution. But courts have recognized it to mean that conversations and materials in the executive branch may be withheld from Congress or the judiciary. In fact, the documents found at Mar-a-Lago are all executive branch documents, sought by the executive branch. In the view of most legal scholars, Trump no longer possesses executive privilege, as a former president. Second, she asserted Trump may face something called “reputational harm.” This is not a legal term. No such doctrine requires law enforcement to halt a criminal investigation because it may cause reputational harm. She did just that, halting the Justice Department’s criminal investigation.

Finally, she claimed that as a former president, Trump is different from other Americans, and is subject to different treatment by law enforcement. In stopping the criminal investigation, she determined that he may be above the law until after a review of all materials by a special master. So much for the rule of law. Former Trump attorney general William P. Barr called her opinion “deeply flawed” and advocated an appeal. On Sept. 8, the Justice Department formally appealed her decision to the 11th Circuit Court of Appeals.

The Constitution is not at fault here, the judges are.

Jack Fruchtman, who lives in Aquinnah, has written “The Supreme Court and Constitutional Law,” now in its third edition, and “American Constitutional History,” now in its second.