S2E1: How Constitutions Get Changed

There’s going to be a train wreck unless we act now. A train wreck for the convention movement, and hence, a train wreck for the only reasonable chance that we have to fix our broken Constitution, and hence, a train wreck for this nation.

So do we really need an Article V Convention? This should be the only real question that should trouble Americans just now. Do we need a different way to propose amendments to the Constitution? Do we need amendments to our Constitution at all?

“This would be chaos.” An Article V convention would be “chaos.” Or so says the great Robert Reich in the video that has triggered this season of Another Way.

This is Larry Lessig, and this is Episode 2 of Season 2 of the podcast Another Way. In the first episode, I described two ways that the Constitution allows that amendments to the Constitution might be proposed. Only one of those two ways of proposing amendments has ever succeeded. The second way — “a convention”—has never happened, though we’ve gotten close. That second way terrifies people like Robert Reich. In this episode, I describe why.

The Constitution of the United States specifies the rules for its own amendment. Article V lays out those rules. An amendment must first be proposed and once proposed, adopted or, as the Constitution says, ratified. More than 11,000 amendments have been proposed in the 230 years since the Constitution was adopted. Of those, 27 have been ratified.

There’s a scholar, an activist, a leader, a former Labor Secretary, a citizen, and a friend — Robert Reich — who has been trash-talking the idea of a convention to propose amendments to our Constitution. That fact really bothers me.

“But why,” the Democratic politicians will insist, “why do we need anything more than simply elect Democrats? What’s the need for a Reform Caucus when the Democratic Party is already committed to a platform of reform? Why complicate what could be so simple: a Democratic President with a Democratic Congress committed to passing the changes that reform obviously requires?”

I think the answer’s pretty obvious: we would win by stealing Donald Trump’s words while changing their meaning. The campaign to defeat President Trump and to reform this democracy must be led by candidates who make two simple promises: first, drain the swamp; second, make America great again.

In 1864, in the middle of our “great Civil War,” America held a presidential election. Lincoln was President. None were confident, especially his supporters, that he would be re-elected. Indeed without the gift of a Grant victory at Petersburg, it’s pretty clear he would not have been reelected. The nation was exhausted by war. Most Americans were resolved to peace at any price.

In the middle of 2016, the University of Maryland’s Program for Public Consultation conducted a massive survey to measure America’s satisfaction with their government. Surprise! Surprise! Not many Americans were very satisfied. Much more surprising was this: the reasons that Americans gave for their dissatisfaction were almost universally the same — regardless of age or sex or geography or, most amazingly, political party.