Clint Eastwood, constitutional scholar

At the end of the Constitutional Convention of 1787, Benjamin Franklin encouraged his fellow delegates to go home to their states and persuade their compatriots to ratify the document the convention had produced. “I confess that I do not entirely approve of this Constitution at present,” Franklin acknowledged. But he doubted that his judgment was perfect. “I doubt too whether any other convention we can obtain may be able to make a better Constitution.” The convention had done the best it could; now it was up to the people.

Franklin and the other delegates didn’t rule out that a convention at some future time might make useful improvements upon the present handiwork—just as the Philadelphia convention had improved upon the Articles of Confederation. The Constitution provided two paths to amendment: through Congress and through the states. The first path allowed Congress to propose amendments; the second permitted the states to call a new convention to propose amendments. The first path was straightforward. A proposal for an amendment would be introduced in the Senate and the House of Representatives, and upon receiving a two-thirds majority in each, it would be forwarded to the states for ratification by three-quarters of them.

Yet this first path had a serious drawback. If Congress itself was the problem that needed to be fixed—if Congress, for instance, had arrogated excessive powers to itself, or if it had become paralyzed by partisan warfare—it might not be willing or able to approve an amendment embodying a necessary remedy. Hence the path through the states. This second path differs only in the proposal of amendments, by two-thirds of the states; ratification still requires three-quarters of the states.

Twenty-seven amendments have been made to the Constitution. All have traveled the first path, through Congress. Yet from time to time movements have emerged to try the second path. In the late twentieth century, several states approved a call for a convention to write a balanced-budget amendment, noting that federal deficits raged beyond the capacity of Congress to control. A separate rallying cry for term limits on members of Congress elicited additional calls for a new convention. Advocates of other changes to the Constitution weighed in as well.

By the beginning of 2023 the number of states calling for a convention remained short of the necessary 34. How far short was hard to tell, because the state resolutions for a convention didn’t all agree on the reasons for the convention. Did the reasons matter? Or was simple call for a convention enough? No one knew where the authority to decide lay.

By and large, conservatives were the ones favoring a new convention. They tend to think government is too big, and they want to knock it down to size. Progressives, by contrast, like big government, and they opposed what they interpreted as a conservative veto on needed government authority.

There were exceptions. Gun-controllers despairing that Congress would ever endorse a revised Second Amendment hoped a convention might do so.

Observers in various parts of the political spectrum worried that a convention summoned for any single purpose might not confine itself to that purpose. The thought of a runaway convention sent chills through cautious conservatives and progressives alike. 

Other observers tried to calm them down. Whatever amendments anyone proposed would still have to be ratified by three-fourths of the states. This was the ultimate backstop. 

Or was it?

The only time anything like the proposed convention had happened was when the original Constitutional Convention met in 1787. And that convention, nominally summoned to propose amendments to the Articles of Confederation, had immediately gone rogue. Without authorization from the Congress of the Confederation or the states, the delegates wrote an entirely new charter, which asserted its own rules for adoption. The Articles had required that amendments be ratified by all the states. This backstop was cited to allay the concerns of skeptics of the Philadelphia convention. If you don’t like what the convention produces, they were told, one state will be enough to veto any amendment. 

The new Constitution overrode this, saying it would take effect upon approval by any nine of the thirteen states. What this would mean in practice, if only nine ratified, was very unclear. Would the other four still be bound by the Articles of Confederation? Would they challenge the secession of the nine adopters of the Constitution?

In fact, when the ninth state ratified, two of the largest and most important states, Virginia and New York, had still not decided. Everyone understood that if either one stayed out, the whole Constitution project might fail. But after long and bitter debates, both traded in the Articles for the Constitution. The last holdouts, North Carolina and Rhode Island, had no choice but to make it unanimous.

What would be the analogue today? How would things play out?

Something like this: By order of thirty-four states, Congress sets a place and time for a new convention. The convention meets and writes a new constitution. The new constitution specifies that it will take effect for the first forty states, say, that ratify. 

Where would that leave the non-ratifiers? Where would it leave the Constitution?

If the refusers were small states, they might feel obliged to swallow their complaints and tag along, the way North Carolina and Rhode Island did. If they were large states, they might become one or more separate countries. If California stayed out, it might pull Oregon and Washington with it. New York and New England could certainly survive on their own.

One thing that probably would not happen would be a civil war. The leftovers would lack the critical mass to threaten the leavers.

A wild card for which the experience of the 1780s holds no lesson is the role of the federal government as an institution. In 2023 there are roughly 2 million civilian employees of the federal government and almost 1.5 military personnel. Many millions more men and women work for companies that provide products and services to the federal government. What would become of them? In 1788, the federal workforce was minuscule, consisting of postmasters and customs agents primarily. Many of them transitioned from the government of the Articles to that of the Constitution; those that didn’t weren’t numerous enough to raise a ruckus. The same might not be said of federal and federal-adjacent workers today.

Another difference: The government of the Articles hadn’t existed long enough—eight years by the time of its demise—to have generated strong loyalty. The government of the Constitution has existed for more than two centuries. Hundreds of thousands of Americans have given their lives to defend it. It won’t be lightly set aside.

Toppling the Articles in favor of the Constitution was a gamble. The gamble paid off handsomely. Those of us fortunate enough to live in the United States today owe it a great deal.

Replacing Constitution 1.0 with Constitution 2.0 would be a gamble. It might pay off. It might not.

The question boils down to the one Clint Eastwood’s character Harry Callahan put to a bad guy who thought Callahan might have run out of bullets in his .44 Magnum: “Do you feel lucky?”