Commentary

Constitutional Correction Course – It’s About Time to Use Article V

By JOHN M. IMPERIALE | Jun 26, 2019

We all, presumably, love and respect the Constitution of the United States. So why do we ignore Article V?

There is genius in the Constitution. It has created a democratic form of government unequalled in history. The three branches of government, the separation of powers, the checks and balances – all are brilliant beyond what could have been expected of 55 men huddled together in a hot, muggy Philadelphia hall 232 years ago. So why can’t we admit what the creators of the Constitution knew and clearly stated: It is not perfect?

It is not un-American to say so. It is, in fact, the ultimate expression of American values: Speak the truth even if it means being critical of our own government. The men who drafted the Constitution were aware of its imperfections. They trusted that it would be amended over time and thoroughly examined by future generations. Thomas Jefferson believed each generation ought to write its own Constitution. Benjamin Franklin, before casting his vote for the Constitution, said, “I agree to this Constitution with all of its faults …”

Knowing that they did not get it perfect the first time, the Founding Fathers made sure there were ample provisions for amending the Constitution over time, as they fully expected would happen. They gave us Article V. But it has not been utilized, not nearly as often as they would have expected.

There was the Bill of Rights, passed only because promising to do so was a necessary commitment to achieve ratification. James Madison, father of the Constitution, did not want a Bill of Rights because he believed that listing certain rights would imply the exclusion of other rights not considered at the time. How prescient!

The 17 amendments that followed the Bill of Rights addressed only the most blatant problems in the Constitution, along with issues such as presidential succession, voting rights, and the absurdity of Prohibition and its repeal. The last amendment that was passed, in 1992, over 200 years after it was submitted to Congress, simply delays congressional pay raises until the next term. The last really meaningful amendment, lowering the voting age to 18, was enacted almost 50 years ago after a campaign built around the premise: old enough to die in Vietnam, old enough to vote.

Article V provides for two ways to make amendments. We are all aware of the first method, the one used for every amendment to date: Two-thirds of both houses of Congress propose an amendment. We seem to have lost our appetite for such initiatives. The second method, also in Article V, allows for two-thirds of the states to call for a constitutional convention. That has never been done. Yet.

You might be surprised to learn that we are currently only six states short of a new constitutional convention. Twenty-eight states are currently on record as calling for a convention, specifically to address a balanced budget amendment, though at such a convention anything can happen (just like the first one called to “amend” the Articles of Confederation).

So let’s look at some of the “faults” (Franklin’s word) we are living with today that could be addressed by a new constitutional convention. We can start with Madison’s problem with the Bill of Rights. Since we did enumerate certain rights, it is time to consider others. What other rights should Americans have, rights that would have never been considered two centuries ago?

Do we have a right to privacy? How far should it go? Does such a right apply to a woman’s right to rule her own body? Speaking of our own bodies, do we have a right to die on our own terms when terminally ill? What about government surveillance – for example, the FISA court? Is health care a right or a privilege? We should have the right to be safe and secure in our own homes, walking down our own streets. Is that not as equal a right as the right to bear arms?

Speaking of the Second Amendment, it includes the mutually exclusive phrases “well-regulated” and “shall not be infringed.” All the debates about this issue, along with conflicting court rulings, lead to the undeniable conclusion that the Second Amendment is poorly worded. Consider also that at the time it was enacted there were no assault weapons, there were no police forces, and there was a need for militias. Time for a rational national debate!

There is not a state in the union where the executive branch (the governor) handpicks the chief law enforcer, the attorney general. It is an elected position. Yet in the federal government, the president fills the post because the Constitution allows Congress to cede the power to appoint “inferior Officers” to the president alone. Time to change that. Consider the oxymoronic phrase “high crimes and misdemeanors.” Time to get a little more specific than that!

The constitutional convention of 1787 spent precious little time on the Supreme Court. It created the third equal branch of government, but left everything about it to Congress; even the number of justices was not specified. We started with six; subsequent Congresses changed it to seven, then nine, 10, seven again, then nine, then almost 15 under FDR (a switch in time saved nine). So how many should there be? Five-to-four decisions are becoming too common. A larger court would prevent one vote deciding major policies. And lifetime appointments? Let’s revisit that one!

No one today would think the Electoral College is a good way to elect a president. Surely some system can accommodate small states without sending unknown “electors” to choose our president. Members of Congress do not have to live in the district they represent, according to our Constitution. Congress is also allowed to “determine the Rules of its Proceedings.” That is how we got to things like gerrymandering and the 60 votes needed to move legislation in the Senate, something never imagined by the founders.

Here is Section 8 of Article I: “The Congress shall have the Power to lay and collect Taxes, Duties, Imposts and Excises …; to regulate Commerce with foreign Nations ...” The founders never got around to the word “tariffs,” so here we are today with the president exercising authority clearly meant for Congress, just worded poorly over two centuries ago.

Jefferson was right: Times change. We should not change the essence of our Constitution. But we should look at it in light of today’s world and with future generations in mind. It is time for an Article V convention.

And before you think it will never happen, consider all the things in American history that most people thought would never happen. We now have a diverse and younger Congress, one that ought to think boldly. A new congressman in these parts, Andy Kim, is a perfect example of the new brand of legislator who is not tied to the past. Tell him to boldly go where no one has gone … since 1787.

John M. Imperiale of Harvey Cedars can be reached at johnmimperiale@gmail.com.

Comments (0)
If you wish to comment, please login.