Our Constitution is not and never was perfect. The Framers intended for it to undergo amendment as required to maintain the spirit of the Revolution and to prevent the recurrence of the weaknesses that saddled our government under the Articles of Confederation. Yet, amending the Constitution has become nearly impossible in our current political environment. Our “frozen” Constitution now ranks among the most difficult to alter the world over.
This status quo cannot persist if our constitutional order is going to withstand threats to its core principles–such as federalism, the separation of powers, and the sovereignty of the people–arising from modern developments. Built-up pressure to amend the Constitution has stressed other political institutions and actors: Congress arguably delegates too much of its legislative power to agencies–power that is then exercised with insufficient oversight; successive presidential administrations have increasingly turned to executive orders to fill in legislative gaps better suited for congressional attention; and the Supreme Court has swung from narrowly interpreting the Constitution to effectively amending it via pathbreaking decisions.
The undersigned call for a Constitutional Convention with a single agenda item: amending how we amend our Constitution.
This Convention would align with a well-defined pattern of Americans substantively amending the Constitution upon substantial and unanticipated changes to social, economic, and political conditions. Two examples of this pattern stand out. Following the Civil War, the Reconstruction Amendments updated the Constitution to expand our political community and afford greater legal protections. And, then, in the wake of the Gilded Age, the Progressive Movement ushered in a series of amendments to again enlarge our electorate, increase the government’s capacity to solve contemporary problems, and provide greater means of political accountability.
Though a hodge-podge of amendments have since been ratified, a decades-long failure to update the Constitution for modern realities has generated a substantial amount of “constitutional debt.” Akin to the sort of “tech debt” that occurs when computer engineers speedily fix an issue that will later require a more effective and resource-intensive solution, constitutional debt is the sum of poor attempts to address issues better suited for amendment.
Constitutional alterations via judicial decisions contribute to that debt. State and federal actors expanding their powers to their constitutional limits (if not further) further add to that debt. We the People taking anti-constitutional actions that undermine our political order also pile on to that debt.
Push has come to shove. We can no longer delay amending our Constitution to account for realities that do not comport with the assumptions underlying its original design. Here’s a short list of some out-of-date assumptions.
One, a system that appropriately balances the power wielded by small and large states. By 2040, when 70 percent of our population resides in the fifteen most populous states, that will surely no longer be the case.
Second, a system in which elected officials regard themselves as accountable to the whole of their community. Given our current electoral system, Senators and Representatives alike have far more interest in appealing to members of their respective parties and their donors more so than their community at large.
And, third, a system in which individuals identify with and advocate for their states. The nationalization of our news, among many other factors, has rendered this assumption quite inaccurate.
Advances in AI, changes brought on by climate change, and worsening income inequality all threaten to further distinguish our contemporary society from the society anticipated by our current Constitution.
This group of scholars pledges not to idly stand by during this critical moment. As academics, we are privileged and obligated to identify solutions to pressing problems. You can expect this group to release various proposals related to keeping our constitutional order running amid novel and complex problems. In particular, members of this group plan to release proposals for how to amend Article V, which contains the current means to amend the Constitution. We hope these proposals elicit widespread analysis. But for this conversation to really take off, we need a wide range of diverse stakeholders to lend their voices to this important and overdue conversation.
We do not think that adjustments to our constitutional order should come exclusively through this process. There are other means to catch up on our constitutional debt. For instance, we can and should explore means to increase civic education, pass legislation that safeguards access to the polls, and support local news. The severity and numerosity of threats facing our constitutional order merit exploration of all these strategies.
The administrative state is one area particularly ripe for an overhaul. The Administrative Procedure Act (APA), a compromise measure enacted in 1946, no longer furthers the values–accountability, transparency, and public participation–that fueled its passage. Decades of judge-made additions to the APA have further muddled the procedural obligations of agencies. And, yet, agencies have become responsible for an ever-increasing portion of our legal order–thousands of regulations are promulgated per year whereas Congress struggles to pass any legislation of substance.
This problematic state of affairs is all the more troubling given the Supreme Court will soon introduce even more uncertainty into the administrative state. Court observers anticipate that the Justices will dislodge a decades-old precedent upon which much of agency action has been authorized and legitimized. Regulation of AI, climate change, and other pressing challenges necessitates getting this core part of our governing system in order. Specifically, as our regulatory challenges become more scientifically and technologically complex it will be all the more important to know with some predictability the extent to which courts will defer to agency actions and interpretations.
Even if overdue fixes to the administrative state are finally made, some adjustments to our constitutional order should only come via amendment and, for those changes to occur, we will need to amend Article V. The Constitution was meant to empower the people to act as the ultimate sovereigns. Yet, many people rightfully feel that the Constitution limits our authority more so than protecting it. That’s a recipe for constitutional disorder–an outcome we must avoid.
Sincerely,
Kevin Frazier
Assistant Professor of Law
St. Thomas University College of Law
Lawrence Lessig
Roy L. Furman Professor of Law and Leadership
Harvard Law School
And dozens more
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