Should we have a Constitutional Convention?

Should we have a Constitutional Convention? By Peter Burrows 2/23/21 elburropete@gmail.com 

A majority of the popular vote in the presidential elections of 2000 and 2016 went to the candidate who lost the election in The Electoral College, and the same was almost true in the 2020 election, where less than a million votes would have reelected Trump, who would have had 5-6 million fewer popular votes than Biden.  

Since that would have been the third time in the last 20 years, something that hadn’t happened since 1888, 132 years ago, I think we can safely conclude that the popular vote not matching the electoral vote is going to become a more or less permanent feature of presidential elections.  

This is a result of both demographic and political trends. In 1960, over twice as many people lived in urban areas vs rural (126M vs. 54M.) By 2020 this has grown to almost five times as many (273M vs, 57M.) Politically, these urban areas have increasingly become strongholds of the Democrat Party. The last Republican mayor of LA, for example was 20 years ago, and of the largest 100 cities today, 64 have Democrat mayors. 

Since the popular vote was won by the Democrat in the above elections, in no small part because of the voting in those cities, it is no surprise that Democrats are leading the charge to do away with the Electoral College.  This started in earnest following the 2000 election with the formation of the National Popular Vote Interstate Compact, NPVIC, something I wrote about in my last article. (Is ‘The New Republic of Texas’ just the beginning? 2/18/21.) 

The NPVIC is an attempt to change how states cast their Electoral votes, not an attempt to change the Constitution.  That would require a Constitutional amendment, which needs three-quarters of the states (38) to approve, which would be difficult to do when it comes to the Electoral College.  

(Actually, the Constitution does not use the term “Electoral College.” The electors never meet and “college” is from the Latin collegium: a group of people in a common pursuit, and Electoral collegium became Electoral College. I suspect the Founding Fathers were much better acquainted with Latin than we are today.)  

The Constitution, however, provides another way to affect changes to itself. Article V requires that Congress “shall call a Convention for proposing Amendments” upon “Application of the Legislatures of two thirds of the several States.” That would be only 34 states and could be surprisingly easy since, apparently, the states don’t have to agree on WHY they want a Constitutional convention, and because a petition is in effect until rescinded.   

Over the years, 27 states have called for a convention to pass a Balanced Budget Amendment, BBA, and A5C advocates, which is shorthand for Article V Convention, make a strong case that if seven more states, for whatever reason, also call for a convention, Congress must comply. By including six petitions filed more than 100 years ago, they argue that only one more state petition is needed.  

That’s a stretch. Three of those old petitions were to call a convention to pass an amendment banning a civil war, and one was for direct election of senators, something accomplished in 1913 by the Seventeenth Amendment, so it seems doubtful that Congress would accept those as germane. Still, five of those six states are solid blue, and it is no stretch at all to assume each would quickly update their petitions. (New York, New Jersey, Illinois, Oregon and Washington. Kentucy is the sixth.) 

This is not just hypothetical. The Georgia General assembly will soon vote on petitioning for a Balanced Budget Amendment and that would make 34 states if nothing changes.  The V5C advocates are licking their chops over this because they make a very strong case that no such Constitutional Convention can be legally limited to only one, two or any specific number of issues. It would be open season on everything. 

Critics of such a convention say this could lead to the elimination of the Second Amendment, altering the First in nefarious ways, e.g., to allow prosecution of “hate speech,” and the list goes on and on. Ironically, the complexities of a balanced budget amendment could easily derail that effort, but there’s nothing complex about eliminating the Electoral College, which is the number one target of the A5C crowd.  

Depending on how Article V is interpreted, I think such a Convention could be a good idea. It would certainly get a lot of media coverage and would be a crash course in the Constitution and its history, something American citizens are woefully undereducated about. It wasn’t always that way.  Alexis de Tocqueville in ‘Democracy in America,’ published in 1831, noted that it was “extremely rare” to encounter anyone not familiar with “the leading features “of the Constitution.  

Of course, things could go awry. Much would depend on the authority that a Constitutional Convention would have. My reading of Article V is that such a convention would have the authority only to PROPOSE amendments which would go into effect only after being “ratified by the Legislators of three fourths” of the states. Unfortunately, Article V then adds “or by Conventions in three fourths thereof.”  

Does that include the Constitutional Convention itself? I don’t think so because it says conventions, plural, IN the states, not one convention held outside the state. Pending clarification of that little detail, I would be OK with such a convention, even though it might eliminate the Electoral College, something I oppose.  

Realistically, the Electoral College is about to become irrelevant anyway. If the “For the People Act” passes, something I mentioned in “Is America starting to break apart? 2/8/21,” the Democrats will win both the popular vote and the Electoral College from now on.  Might as well make it official.  

Which finally brings me to “The New Republic of North America,” which was going to be the topic of this article until I got involved in the demographic changes that are putting the Electoral College in jeopardy, and which underlie the justification for that hypothetical new nation. Next week. Sigh.  

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