Reflections on the Possibility of a New Constitutional Convention
Sanford Levinson argues that a new constitutional convention is needed because of flaws that comprise a clear and present danger to our collective future. He is W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School; Professor of Government, University of Texas at Austin; Visiting Professor of Law, Harvard Law School, Fall 2025.
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I. Introduction
I am both flattered and delighted to participate in this conversation, structured around Gerard Magliocca’s “report” about some of the complexities presented by the prospect of what is sometimes called an “Article V constitutional convention” as an alternative to the usual process by which we rely exclusively on Congress to propose any changes to the Constitution. I am not a truly detached observer. I strongly support a new constitutional convention for a quite simple reason: I believe that the 1787 Constitution, even as (too infrequently) amended over the past 235 years, is not simply flawed in many respects; more important is that its collective flaws now comprise a clear and present danger to any hopes we might have for our collective future. It is, therefore, sorely in need of fundamental rethinking and change.[2]
Publius (Alexander Hamilton) began Federalist No. 1 by referring, somewhat laconically, to the “unequivocal experience of the inefficiency of the subsisting federal government,” referring to the system established by the 1781 Articles of Confederation. So, perhaps we should instead jump ahead to Federalist No. 15, where Hamilton referred instead to the “imbecil[ic]” nature of the existing system and the dire necessity of replacing it. For Publius, the world historical importance of what was occurring in 1787-88 was the demonstration that a free people might engage in “reflection and choice” about how they should be governed. As Americans, we should be unequivocally proud of this aspect of our heritage. We should also be ashamed of the extent to which we have refused to emulate it.
We have seemingly lost the capacity to engage in truly serious assessment of the Constitution and even consider the possibility that it has significant flaws. Instead, we prefer to engage in what James Madison, in Federalist No. 49, called “veneration” of the Constitution. Indeed, that essay was written as a critique of his friend Thomas Jefferson’s seeming call for frequent conventions as an occasion for rational assessment of the strengths and weaknesses of our mode of government. Unfortunately, the Madisonian spirit of almost unreflective veneration has prevailed over a Jeffersonian spirit of vigorous questioning. We desperately need to seriously reflect about the degree to which the Constitution in fact provides an effective framework for governance as the United States, like the world around it, has undergone profound, and transformational, changes.
Any serious reflection leads one to question, among other things, the way national legislative power is organized. This is most obvious with regard to the allocation of equal voting power of the fifty states in the United States Senate. But one can also criticize the dependence of the House of Representatives on exclusively single-member districts. Unlike the allocation of power in the Senate, the reliance on single-member districts is certainly not constitutionally required; it is the result of an 1842 law passed by Congress, which made a great deal of sense at the time, when state-wide “winner-take-all” elections allowed a single party to monopolize the state delegations and leave the minority totally unrepresented. The 1842 Congress was therefore striking a blow for for equitable representation. One might note that electoral votes remain “winner take all,” which is equally objectionable! But times have changed, and what was an undoubtedly progressive measure in 1842 has deleterious consequences in 2025.
The central point, though, is that it is fallacious to assume that today’s Congress itself would be the engine of needed changes that, by definition, would be extraordinarily disruptive of the political status quo. I am fond of quoting what I call “Roche’s dictum,” a statement that I would swear I heard delivered by political scientist John P. Roche sometime in the 1960s: “Power corrupts, and the prospect of losing power corrupts absolutely.” It is almost quixotic to expect members of Congress to take seriously proposals for reform that necessarily result in their loss of political power. Similarly, one should certainly not expect a sitting President to lead the call to address (and weaken) a bloated presidential office that has led to what Professor Jack Balkin and I have called, following the late Clinton Rossiter, a “constitutional dictatorship.”[3] Thus the practical need for a convention where “We the People” can address questionable, even ominous, aspects of our political system. To rely on our elected “representatives” is futile. They are far more likely to “represent” their donors even than those who vote for them, let alone those who are members of the opposition party.
One can imagine a constitution in which there would be a plausible alternative to a convention as a mechanism for needed transformation. Think only of Nebraska—which few people outside of Nebraska ever do! Nebraskans collectively decided in 1934 that there was no need for a state senate—an “upper house”—and they voted to scrap it in favor of what is now proudly termed the “Unicameral.” They could do that because Nebraska, like many American states, particularly in the West, allows its people actually to play a decisive role in reflecting and then choosing how they wish to be governed. That is, there is a process of “direct democracy” by which the citizenry can place on the ballot proposals for constitutional reform and then vote yea or nay on whether they should be accepted. That is true also of a number of foreign constitutions. The United States Constitution, however, whatever its claims to be “ordained” by “We the People,” contains no iota of direct democracy.
James Madison, in Federalist No. 63, took great pride in this facet of the Constitution. He gloried in the fact that the United States completely rejected the notion of “democracy” identified with ancient Athens, in which (at least) free male citizens were empowered to engage in direct rule. For Madison, “[t]he true distinction” between Athens “and the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share” in actual governance. Everything, without exception is to be done exclusively through “THE REPRESENTATIVES OF THE PEOPLE.” The capitalization is all Madison’s. One way of reading this is as a thorough rejection of “government by the people” even if we assume (or at least hope) that so-called “representatives” will in fact govern for the people. But the difference between “by” and “for” the people is absolutely vital!
II. Conventions as Reflections of Popular Sovereignty
As Magliocca well spells out, the concept of a “convention” of the people raises profound questions of political theory as well as almost demonically difficult practical problems. The claim, after all, is that such a “convention” in fact instantiates “the people” at large and is therefore authorized to act in the name of the whole. This is necessarily tied to what I now regard as the most important single political idea of the past 400 years, which is the idea of popular sovereignty.[4] Although one can find references to “the people” in earlier thought, only with the ultimate decline of notions of rulers chosen (or, at last, rules commanded) by God did the idea move front and center. The key figure is Thomas Hobbes, though of course many others contributed to the triumph of the idea over the ensuing centuries.
What is left behind is the assurance, found, for example, in Romans 13:1, that magistrates, including monarchs, are in effect chosen by God. Consequently, their edicts should be obeyed as if coming directly from Divine authority. Charles I went to the scaffold in 1649 claiming, altogether plausibly from his perspective, that the Cromwellians were rebelling not only against their earthly King, but, more importantly, against God. It was as if the forces of Satan, so memorably envisioned by John Milton in another seminal work of the time, had been successful in their revolt and executed God. Although Hobbes was scarcely a Cromwellian, he had no patience at all for claims of Divine Sovereignty. There was only one sovereign: the people whose collective will authorized the state. They were free to authorize whatever particular system of government seemed conducive to protecting their security, their primary goal, and that could certainly include a monarchy and the Leviathan state. But the point is that the authority of the state, however powerful, rested on the fiction of popular choice.
Popular sovereignty as a constitutive ideal had become deeply rooted in American consciousness by the end of the 18th century, even if, paradoxically or not, the words “democracy” and “democrat” were more likely to be used as terms of criticism rather than praise. The latter often referred to particular conceptions of government, and most “enlightened” thought of the time, including Madison’s, expressed doubt, if not outright fear, of actual governance “by the people.” But this was altogether different from the need for “the people” to authorize their specific mode of governance and, if need be, to change it if it proved defective. Thus, the Declaration of Independence emphasized that “whenever any form of government becomes destructive” of the ends for which people presumably establish a government on the first place, “it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” Madison himself adopted this view. Thus, on June 8, 1787, he proposed to the those assembled in Philadelphia “[t]hat there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.” This entailed that “the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.” It should be obvious that this Jeffersonian view is in tension with Madison’s later embrace of constitutional “veneration.”
To read the Declaration too closely, or to take some of its ideas too seriously, may lead to what Wittgenstein called “mental cramps.” Begin only with the question of who are “the people” actually empowered to enage in such “reform or change”? Jefferson began the Declaration by referring to “one people” united by the desire to secede from the British Empire. To put it mildly, he provides no genuine mode of identifying who is within that category. It is not only that there were many “Loyalists” who remained loyal to the Crown. There was also the reality of enslaved people, not to mention members of Indigenous Nations, many of whom altogether sensibly supported the British rather than the colonial settlers who seemed determined to move ever westward and conquer any such Nations in their way while trying to establish new enslaving states. And one might doubt as well that the Puritans of New England were truly at one with the Episcopalians or Baptists of Virginia, not to mention, of course, the Catholics in Maryland, to speak only of the divisions within American Christianity.
The theory of “popular sovereignty” not only requires us to identify who is—and is not—within the polity. It also almost necessarily entails confronting what came to be called the theory of constituent power. That is, given the practical unreality of bringing together all of the “sovereign people” in a collective assembly, one must inevitably treat a far smaller body or group as the instantiation of “the people at large.” This group would create and thereby make authoritative what was otherwise simply a constituted power. The latter, at least in theory, gained its juridical life only from the actions of the prior constituent power.
Think of Article VII of the Constitution in this respect. The proposals emanating from Philadelphia gained life only when ratified by the conventions of nine states. That and that alone, legitimated the sweeping away of the system established by the Articles of Confederation and its replacement by a brand-new Congress and President. Quite obviously, all of this is highly abstract. The eminent American historian Edmund Morgan, in his book Inventing the People, pronounced the overall concept of popular sovereignty as a “fiction” by which given elites, purporting to instantiate “the people,” imposed their own preferred mode of governance on hapless (and empirically helpless) multitudes. To be sure, there may be better or worse examples of such impositions, but what unites all of them is the claim, whether by our own “Founders” or by Leninists, that a part speaks for the whole and has authority to bind everyone to their specific wishes.
As Magliocca notes, Madison wrestled with such issues in Federalist No. 40. After all, the Philadelphia Convention not only went far beyond its seeming assignment only to “revise” the Articles of Confederation, but also, more importantly, simply decided to ignore Article XIII of the Articles. That provision required unanimous consent of each of the legislatures of the thirteen states that had purportedly agreed to a “perpetual Union” in 1781. However, Madison ridiculed the idea that a single state should be able to block what he viewed as the absolutely necessary transformation of the ineffective Confederation if the United States were to survive.
Rhode Island made the disastrous mistake of relying on the solemn assurance set out in Article XIII. Accurately fearing what we would today call a “runaway convention,” the Rhode Islanders decided that the safest course would be simply to ignore the Convention in Philadelphia. Therefore, they refused to send any delegates at all, which might, after all, simply serve to legitimate it and any mischief it might engage in. (The perception of a “runaway convention” is what led two of the three New York delegates—Robert Yates and John Lansing—to exit the Convention, leaving the lone voice of Alexander Hamilton to “represent” the state.). Better to rely on the solid textual guarantee of a right to veto anything that emerged from Philadelphia. Article VII of the proposed Constitution, of course, simply declared that the rules had changed. Article XIII turned out to be what Madison in a different context dismissed as a “parchment barrier” that could (and would) be breached if perceived necessity required.
The new Constitution didn’t need Rhode Island’s approval. It was enough to get the approval of nine states. And that approval was not to come from legislatures. They were also cut out of the process, not least because the Constitution effectuated a massive shift of power from states to a new national government. One might reasonably suspect that many legislators, illustrating Roche’s dictum, would have been hesitant to ratify such a shift. Thus the reliance on delegates, elected by the people, who would meet in state ratifying conventions. Quite remarkably, this aspect of the history of the United States Constitution is rarely taught to law students when being “introduced” to “American constitutional law.” The Constitution simply appears, and it is assumed that the only task is to figure out what it means, not what might explain or justify its presence in the first place.
In any event, Madison defended these rather extraordinary decisions and mocked those who relied on “forms,” such as Article XIII, rather than recognized the crying need for patriotic citizens, such as those in attendance at Philadelphia, to respond to the pressing exigencies of the moment. “Alteration” and even “abolition” of the Articles was a pressing necessity, and the Convention obliged. Fortunately, enough state conventions agreed so that the new Constitution was adopted. It is important, though, to note that when George Washington was inaugurated as president on April 30, 1789, there were only eleven states in the Union. North Carolina and Rhode Island were simply not part of the Union. Rhode Island did not ratify the Constitution until May 29, 1790, a full year later; even then, the vote was a scarcely robust 34-32. There are those who believe that Rhode Island was aware of the threat of an invasion from Massachusetts and Connecticut should it really attempt to retain its independence as a smuggler’s haven operating out of Newport.
III. The Importance of “Framers”
At the very least, then, the sole national convention in 1787, and its aftermath, present deep and, perhaps, troubling issues. We tend to overlook them, perhaps, because of the stature of those we denominate the “Framers” of the Constitution. Magliocca ia almost certainly correct when he writes that “[t]he active participation of the two most famous Americans at the time—George Washington and Benjamin Franklin—was probably the most crucial factor in establishing the Philadelphia Convention’s informal and patriotic legitimacy to propose a new ratification method that the public would accept.” Perhaps the closest analogue in our own lifetime is Nelson Mandela, who was able to move from Robbins Island to the presidency of the Republic of South Africa under a new constitution whose legitimacy depended at least in part on the sheer fact that he was a principal negotiator and supporter. As a political scientist, I am generally attracted more to structuralist accounts than to ones that emphasize the importance of “great men.” But it is difficult to understand the formation of the United States Constitution—or the South African constitution—without paying attention to the key role played by particular persons of note.
Anyone, like myself, who advocates a new constitutional convention must recognize that there are no contemporary figures remotely comparable to Washington or Franklin (or Mandela) as icons of “patriotic legitimacy.” That is one obvious hurdle when trying to imagine a successful convention today. Moreover, I think it completely unlikely that Americans in the 21st century would accept the one-state/one-vote principle that operated in Philadelphia. It might have made great sense in 1787, when there was no genuine collective sense of membership in the United States of America. (Several reprintings of the Declaration of Independence had printed the adjective in lower case and reserved the capital letter for “States.”). The delegates to Philadelphia, even if among the most “nationalist” of Americans of the time, could nonetheless also be viewed as the equivalent of “ambassadors” from the states that gave them their primary identity and who were treated as formal equals, as in the General Assembly of the United Nations, where Fiji and the United States each has a single vote. Perhaps the immigrant Alexander Hamilton viewed himself as an “American,” but most were members of families who had lived long enough in the British colonies that they identified themselves primarily as “Virginian” or “New Hampshirites.”
James Madison was furious that the excessive weight given small states led to what he regarded as the “evil” of equal voting power in the United States Senate. He accepted this “evil” because the alternative was almost certainly no constitution at all. He made no real effort in Federalist No. 62 to defend this feature of the Senate; he emphasized, correctly, that it illustrated the necessity of “compromise” if there was to be a Constitution at all. It signified a capitulation on the part of delegates from larger states rather than any genuine agreement that Delaware deserved to be treated as the equal of Virginia. The delegates from Delaware had made it clear that they were prepared to torpedo the Convention if their demands for equal power in the Senate weren’t met. The Constitution of 1787 cannot be understood apart from the “evil” compromises that its adherents thought it necessary to accept in order to attain the principal goal. That was replacing the “imbecil[ic]” system created by the Articles of Confederation with one that gave the fledgling United States at least a decent chance at survival and even flourishing as an independent country in a basically unfriendly international system whose leading members certainly could not be counted upon to wish it well.
For whatever reason, the decision to accept equal voting power in the Senate is often called the “Great Compromise.” No one ever uses that term to refer to the various compromises with chattel slavery, such as the Three-Fifths Clause that gave enslaving states added power in the House of Representatives and, therefore, also the Electoral College that, in fact, elects presidents. That is probably because we today are ashamed of the enslavement-related compromises and capitulations. For whatever reason, that appears not to be the case with regard to allocation of voting power in the Senate. Yet we continue to pay grievous prices for these decisions—as well as others—made 238 years ago, which is why I strongly support a new convention.
IV. Imagining a New Convention
So, what might a new convention actually look like? The sad answer is that we just don’t know. Begin only with thinking about who actually would be the delegates. Given the absence of contemporary analogues to George Washington or Benjamin Franklin, my own suggestion is that delegates be elected basically at random, to create a nationwide “citizen jury.” That no doubt appears at least audacious, if not “crazy.” But a basic challenge is imagining, in the 21st century, a group of fellow Americans who might be able to convey the sense of authority that was done by those in Philadelphia.
Article V, which explicitly contemplates the possibility of a new convention, is basically a Pandora’s box with regard to laying out any specifics, beginning with the selection of delegates. It appears—though appearances can be deceiving!—that Congress must call a convention if two-thirds of the states petition it to do so. But, of course, lawyers are especially skilled in creating ambiguities and problems that often delay—or simply prevent—action, and nowhere is this more true than with regard to an Article V convention. What we know for certain is that Congress has never, in fact, issued a call for a new convention. By definition, the calls for a new convention are likely to come from outside Congress, and one might well predict that Congress will remain hesitant to acquiesce unless there literally appears to be no alternative. Or, as Magliocca suggests, perhaps Congress will try to structure the rules by which a new convention might operate, with potentially ominous consequences with regard to the actual potential of a “successful” convention. There are good reasons to challenge such congressional authority. But, if not Congress, then who?
So what questions might members of Congress—or any other American—bring up for anyone claiming to invoke the Article V convention process? Begin with what to lawyers is probably the most obvious: Must the petitions in fact be identical, or is it enough that a petition simply contains the magic words “new convention”? Perhaps state A wants a convention to establish, say, a Balanced Budget Amendment, while State B invokes its petition as part of an effort to abolish the Electoral College. Should this be counted as two petitions on behalf of “a convention” or as two single petitions that cannot be aggregated because, after all, their purpose is entirely dissimilar? No one can say with confidence exactly what the answer is. Indeed, no one can say with confidence who might be relied on to provide a definitive answer. The Supreme Court? Congress? The convention delegates themselves?
But a more fundamental question, addressed by Magliocca, is whether the texts of the petitions ultimately matter. Can a convention be limited to consideration only of the issues that states specify? Are the petitions in effect commandments to do X and not Y, or are they only suggestions that nonetheless recognize that a convention, unlike a legislature, say, is ultimately unlimited in what it is free to propose? To be sure, all conventions lack the power actually to impose a new constitutional order without ratification by an outside body, but the power to propose is significant, not to mention, of course, the potential power to authorize a new process of ratification, as was done in 1787.
This inevitably requires returning to the thorny issue of constituent power. If, after all, a convention is perceived as a reversion to the “sovereign people” who alone provide the foundation for legitimacy of the governmental enterprise, then we must confront the possibility that the very meaning of “sovereignty” is unboundedness. This is especially true if we analogize the power of “the people” to the now-displaced sovereign power of God. Thomas Hobbes spoke of the “sleeping sovereign” that would, ideally, remain comatose while the authorized government—the Levithan state—exercised political power. But there was always the possibility of what might be termed a “great awakening,” whereby the “sovereign people”—or, more accurately, those claiming to speak on behalf of “the people”—would stir themselves and recapture their initial power.
If there are limits on what a “sovereign people” can “ordain,” then those limits must come from some source other than “the people” them- or our-selves. At that point, we can revert to medieval (or even more ancient) debates about any limits on divine power. Perhaps, for example, one agrees with Harvard Law Professor Adrian Vermeule about the importance of rediscovering “natural law.” An obvious problem, though, is whom we trust to identify such law, especially if, almost by definition, it constitutes constraints on popular sovereignty. We do well to remember that the motto “The voice of the people is the voice of God” was initially presented by Alcuin of York in a 798 CE letter to Charlemagne, where it was presented basically as a reductio ad absurdum, for surely one could not identify public opinion with Divine authority. But the Hobbesian revolution of the 17th century and many other developments turned sarcasm into what for many was the equivalent of an analytic truth: In a world where Divine authority had fundamentally disappeared, the will of the people indeed had the same plenary authority as had formerly been claimed by monarchs attributing their own “sovereignty” to Divine selection.
Returning to the realities—or at least the theoretical presuppositions—of a new constitutional convention, I am disinclined to believe that its agenda could in fact be limited by the desire of states (or Congress) to do so. For better or worse, the precedent established in 1787 legitimated a true “runaway” convention, in which little or no attention was paid either to the possibly limited authorization of Congress in calling the convention or, more importantly, to the strictures set out by Article XIII of the Articles of Confederation. All were subordinated to the perceptions of the leading delegates in Philadelphia that the “exigencies” of the moment required doing what was necessary.
The delegates were quite candid about what they were doing. Consider Edmund Randolph, the Governor of Virginia—who would later become the first Attorney General of the United States. “There are great seasons,” he told his colleagues on July 16, 1787, “when persons with limited powers are justified in exceeding them, and a person would be contemptible not to risk it.”[5] His fellow Virginian, George Mason, agreed: “In certain seasons of public danger it is commendable to exceed power.”[6] On this, they had the complete agreement of New York’s Alexander Hamilton: “To rely on & propose any plan not adequate to these exigencies, merely because it was not clearly within our powers, would be to sacrifice the means to the end.”[7] All could have cited, had they wished, John Locke’s chapter in his Second Treatise on Government defending the “prerogative” of rulers to violate ordinary law when necessary for the “public good.”
James Madison presumably agreed as well, with an interesting twist: Any irregularities in the process by which the Philadelphians proposed the new Constitution would be cancelled out by the fact that ratification would occur in separate conventions whose delegates would be popularly elected (at least if one overlooked the exclusion from the suffrage of women, members of Indigenous nations, and, most certainly, enslaved persons). Thus, in The Federalist No. 40, Madison defended the Convention’s action by writing that the delegates “must have borne in mind, that as the plan to be framed and proposed was to be submitted to the people themselves . . . its approbation [would] blot out antecedent errors and irregularities.” The need to meet perceived exigencies or emergencies should prevail over strict fidelity to constitutional norms. Public “approbation” took precedence over mere legal constraints.
This suggests, among other things, that it is a fundamental mistake to engage in what might be termed the “over-legalization” of the terms of a new convention. It is, to be sure, interesting to read the conclusions of a skilled and thoughtful lawyer like Professor Magliocca. But it is not clear that lawyers should be treated as genuinely authoritative. As it happens, both Hamilton and Randolph were lawyers, as were the important figures of Gouverneur Morris and James Wilson. But Madison and Mason were not, nor were Washington or Franklin. More to the point, it is hard to credit either Randolph or Hamilton as making “lawyerly” arguments, just as it is the case that Wilson, a truly distinguished lawyer, made most of his contributions in Philadelphia as a political theorist, (unsuccessfully) advocating, for example, direct election of the President as entailed by a commitment to popular sovereignty. And there was nothing particularly “lawyerly” in Morris’s eloquent, but also unsuccessful, denunciation of continued complicity by the United States in the international slave trade. With rare exceptions, significant constitutional reform—or even discussion of the possibility of such reform—takes place only when there is a general realization that the status quo is perilous and drastic change perhaps necessary. “The law” as such, as we have seen, took a decided secondary role when compared with the requirements of responding to the “exigencies” facing a beleaguered society.
One should deeply ponder Madison’s assertion in Federalist No. 41 about the futility of placing ostensibly absolute limitations in the way of governmental action. Thus, he wrote, “It is in vain to oppose Constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions” (emphasis added).
This was taught by the Framers of the Constitution in 1787. One can argue that it was also true after Appomattox, when the so-called “Reconstruction Amendments” were added to the Constitution under what Yale law professor Bruce Ackerman has definitively established were legally questionable procedures. Looking abroad, the transformations brought about in Germany and Japan by defeat in war are more common than the calm (and largely unnoticed) revisions of the Swedish constitution in 1972. As Tocqueville argued, “lawyers” may have played a disproportionate role in the elites dominating American politics, but one must separate their technical skill from their role as what he might have called “statesmen” (or, today, “statespersons”). As Mark Graber has demonstrated in an important recent work on the gestation of the Fourteenth Amendment, Punish Treason, Reward Loyalty, the major figures behind the Amendment took relatively little interest in Section One, which dominates the discussion among contemporary lawyers, and instead focused on ways of entrenching the power of the Republican Party and, ideally, limiting the ability of former Confederates to recapture political power. They were, of course, unsuccessful, but the point is that Thaddeus Stevens and others were thinking far more like “constitutional designers” interested in achieving concrete political objectives than like “lawyers” trying to establish the meanings of an existing constitutional text to be enforced by judges.
V. So Why Advocate a New Convention at the Present Moment?
What explains the contemporary interest in the possibility of a new constitutional convention, including the commissioning by the National Constitution Center of this “report” by Professor Magliocca and responses to it? I can testify that I repeatedly hear from people that “now is not the right time to have a convention. We are just too polarized.” There is much to be said for such a view, but it is also naïve to assume that we are truly masters of our fate and can time great events to coincide with our deepest wishes. For whatever reason, Jeffrey Rosen and the National Constitution Center recognize that there is, in fact, increasing interest—perhaps one should use the biblical word “murmuring,” referring to those Israelites who, observing the Sinai desert, expressed some doubts about the wisdom of following Moses out of Egypt—about the desirability of holding a new convention. There are those identified with the Right who are actively promoting a new convention, led by former Senator Rick Santorum. The principal response of the Left has been to circle the wagons around the Constitution and to deny either that it needs significant change at all or, more “moderately,” to say that the time is not ripe for any such discussion today. Perhaps there will be an appropriate time in the great by and by, but for now we should change the subject.
I have been promoting the idea of a new convention for more than four decades. I will confess that that might have begun as a “thought experiment.” In recent years, though, it rests on a deeply heartfelt belief that blithe maintenance of the existing Constitution is actually a danger. But I can testify that both then and more recently, such advocacy has felt not only like swimming upstream against a strong current of what Madison labeled constitutional “veneration,” but even like swimming up a waterfall with regard to persuading anyone of its desirability! Almost none of my colleagues, friends, or even members of my own family agree with me. This remains true even if, paradoxically or not, more people than ever now agree with me that the Constitution is fundamentally “undemocratic” or even perhaps dangerously “dysfunctional.”
My wife and I co-authored a book, notionally for teenagers, Fault Lines in the Constitution, that sets out, in its July 2025 third edition, some 21 threats analogous to the San Andreas Fault and other geologic harbingers of earthquakes and tsunamis. These range from relatively low-hanging fruit like the Electoral College and the indefensible allocation of voting power in the United States Senate to far more esoteric issues like the inability quickly to reconstitute the House of Representatives, inasmuch as every member of the House must first be elected, should a terrorist attack or pandemic kill most of its members. (Dead senators can easily be replaced, though merely disabled senators would pose similar problems for what is called “continuity in government.”) So one ought to recognize the possibility that more Americans are, in fact, becoming discontented with their Constitution. Perhaps this is reflected in the earlier decision of the National Constitution Center to commission reflections on constitutional reform by groups of conservative, libertarian, and progressive scholars.[8]
Still, it is fair to note that no prominent national leaders, unless one counts former Senator and unsuccessful presidential candidate Santorum as such a leader, have chosen to present themselves as “constitutional reformers,” and this is especially true with regard to calling for a new constitutional convention. The self-described “revolutionary” Bernie Sanders ran two presidential campaigns without once suggesting that his ultimate success, were he elected, might require constitutional change. The penultimate chapter of Fault Lines in the Constitution is a debate between my wife and me about the desirability of holding a new convention to address the fault lines that we identify. We obviously agree on the existence of significant “fault lines” and vigorously comment on the desirability that students engage in “reflection and choice” about what is, after all, their own political future. Yet, she draws the line at advocacy of a new convention.
It is not the case that she is fearful of a ”runaway convention.” That fear is, I believe, basically a red herring. Rather, she makes the excellent point, to which I have no truly good answer, that we would be at each other’s throats well before the convention actually met because the Constitution provides no persuasive answers to how a convention would be structured in the first place. Who would select the delegates, what would the voting rules be, and, of course, would the agenda be limited or unlimited? The time just isn’t right.
Although Columbia Professor Jan Elster ascribes the success of the Philadelphia Convention to the fact that its proceedings were successfully kept entirely secret, it is almost literally inconceivable that that would be possible today. For better and worse, it would inevitably be a public event, not a gathering of political elites who would simply be trusted to confer (and bargain) with one another free from any public overview until the moment at which some new document would be delivered to the waiting public. As anyone with an historical consciousness realizes, “the past is a different country,” and one aspect of our constitutional past was the willingness to defer to elite leaders (even if just barely) rather than to demand an active role in the decision-making process. It is altogether possible that the Constitution of 1787 never would have received the support it did, often by close votes, had it been submitted, say, in the 1820s, when the “democratic revolution,” at least among white males, was in full swing and state constitutions were being rewritten throughout the country to reflect this new political reality.
Professor Magliocca notes, altogether accurately, that “[t]he Framers cared more about creating the Constitution and getting the proposal ratified than about the process for future changes.” They were, and I mean this altogether respectfully, politicians in the highest sense of the word, trying to save their country from both internal and external threats to its very survival, let alone flourishing. They were not professional political theorists, even if some of them knew, especially when compared to today, an impressive amount of political theory, nor were they trying to write a document for the ages. They were well aware that the Article of Confederation, ratified in 1781, lasted a total of six years before its ruthless evisceration by those attending the Convention. The very existence of an amendment clause is testimony to their realization that they were writing a necessarily imperfect document that would undoubtedly need changes in the future.
Whatever its importance (especially to us today), Article V was added late in the Philadelphia Convention with little discussion. The only real agreement was that change would undoubtedly be necessary in the future. They debated about what might be called the “mathematics of change.” Everyone—at least among those in attendance at Philadelphia, unlike the hapless Rhode Islanders who relied on Article XIII to protect them—agreed that the unanimity requirement of Article XIII was untenable. So, without serious discussion, the requirement of 3/4 of the states was accepted. That handily took care of the “Rhode Island” problem, which was presumably the main desideratum of the moment. No one really imagined in 1787 that 238 years later, the onerousness of the requirement would lead many political scientists to identify the United States Constitution as the most difficult-to-amend constitution in the world (supplanting the Yugoslav Constitution that was effectively repealed by a bloody civil war). Most of the “super-majority” requirements of the Constitution were content to stop with 2/3s (e.g., overriding presidential vetoes, ratifying treaties, convicting impeached presidents, and, crucially, proposing amendments through Congress). The only appearance of 3/4 involves ratification of constitutional amendments. “Why, then,” he asks, “did the Framers make it harder to ratify amendments? The simplest explanation is that they just did not give this issue careful consideration at the tail end of their convention.” He is surely correct.
It is a fundamental error to assume that each and every feature of the Constitution received ample consideration and debate. Some parts did, such as the so-called “Three-Fifths Clause” by which enslaving states received extra representation. Some parts did not, including, quite surprisingly, the so-called “Fugitive Slave Clause” in Article IV that, without using the magic word “slave,” nonetheless was used as the basis for legitimizing the cruel and iniquitous Fugitive Slave Act of 1793 and then an even worse version in 1850. Or, we might even think of contemporary “omnibus” legislation in Congress, including, most recently, the One Big Beautiful Bill passed by Congress even though some of its own adherents freely admitted to being unfamiliar with important features of the legislation. It was Bismarck who suggested that one ought not look too closely at the process by which laws or sausages were made. That caution might easily be extended even to constitutions!
Magliocca also reminds us that almost no notice was taken of Article V in the state ratification debates. Moreover, at least some delegates apparently believed that there would, in fact, be a new convention to tweak what were widely thought to be some deficiencies in the proffered document. Thus, it appears that at least some of the 30 votes to affirm the new Constitution in the New York Convention (as against the 27 opponents) were procured through a promise that New York and other states would successfully petition Congress to hold a second convention where amendments could be proposed and then sent to the states for ratification. This, of course, was never done, not least because Madison, who was petrified by the thought of a second convention, was able to use the proposal of what we now call the Bill of Rights as a fundamental distraction from the structural concerns expressed by some of those who were dubious at the Constitution. They proved a successful “tub to the whale” in warding off what Madison and other supporters of the “consolidated government” created in Philadelphia feared might be a successful counterattack. Professor Magliocca himself wrote an excellent book demonstrating that the vaunted Bill of Rights not only did not receive their canonical name until the 20th century; more to the point, they played no genuine role in constitutional jurisprudence until the late 19th-century and really came into their own only after World Wars I and II. But they did play an all-important role in warding off far more threatening “reflection and choice” about some basic mechanisms of governance. The question for us today is whether there is sufficient agreement that the Constitution does not, in fact, serve us well and, therefore, needs fundamental reform. Can we really afford to wait until the time is “just right”?
VI. States as Locales of Conventions
One of the fundamental mysteries of American politics is why exactly the United States Constitution has remained almost impervious to genuine “reflection and choice” even though the rich history of American state constitutions presents a very different political and historical reality. Two things, after all, can be said about the 19th century. The first is that there was a panoply of state constitutional conventions to draft and revise their own constitutions. Holding such conventions, if one looks only at the American states, is as American as apple pie. As John Dinan, the author of the indispensable book The American State Constitutional Tradition, has demonstrated, there have been well more than 225 state constitutional conventions in the 250 years since declaring independence. Each of the 50 states has had just short of three formal constitutions in its history; even New Hampshire, which purports to be governed by its 1784 constitution, has held seventeen state constitutional conventions because the constitution includes within it a mandate that the electorate be offered the opportunity now every ten years to vote yea or nay on whether to have a new convention. Those conventions proposed myriads of amendments that were, in fact, accepted by the people of New Hampshire. Thirteen other states have similar provisions. For whatever reason, “We the People” of given states are not reluctant to engage in “reflection and choice” about state constitutions. However, things look almost entirely different if one is looking only at the United States Constitution, as is the wont of most legal academics.
Over the next century, Magliocca tells us, “only a handful of states invoked the Article V convention option,” none successful enough actually to trigger a new convention. Why the reluctance to engage with the national Constitution in the same manner as has been the case with state constitutions? One answer, of course, is simply that Americans were far more satisfied with the national Constitution than they were with their state counterparts. But why exactly would one believe this? After all, the country descended into a cataclysmic Civil War in 1861 because of irreparable differences over interpreting the Constitution with regard to slavery. But, it had earlier come close to violent conflict over the so-called “Tariff of Abominations,” which provoked the Nullification Crisis of 1828. Indeed, the first serious mutterings about secession were heard in Hartford, Connecticut, in 1814, from Federalist opponents of Madison’s disastrous decision (or so they thought) to wage war against the British and embargo international trade. William Lloyd Garrison would later burn the Constitution and advocate “no Union with slaveholders.” Abraham Lincoln might have advocated in 1838 a “political religion” that some would define as Constitution-worship, but he was scarcely typical of Americans as a whole, and, as a matter of fact, his own version of “Constitution-worship” did not extend to necessarily accepting Supreme Court decisions, especially Dred Scott, as “the law of the land.”
Magliocca well notes the episode in which we’ve come closest to a new convention, the effort by states to break the gridlock in the United States Senate that prevented replacing legislative selection of senators with popularly elected solons. But states apparently drew back from any lessons they might have learned about flexing their Article V muscles. Thus, he writes that “[t]he convention procedure then went into hibernation again” for a half century, though even then petitions were relatively few and far between. It is fascinating, of course, to learn that “after World War II four states asked Congress for a convention to propose an amendment permitting the United States to join a world government should one be established by the United Nations.” I take it that such a proposal today is almost literally unthinkable and would lead, if made, to charges of being “un-American” or “hating this country.”
Again, though, it is chastening to realize that state constitutional conventions took place with some regularity during this same half century; New Jersey, for example, replaced its earlier constitution in 1948. And, of course, there were other significant constitutional changes, such as Nebraska’s shift to the Unicameral thanks to the ability of the constitutionally permitted initiative and referendum to eliminate its superfluous state senate and become gloriously (and uniquely) unicameral. It is not the case that Americans are incapable of “reflection and choice” about governance. They exhibit such an ability with frequency, at least where their state constitutions are concerned. The problem, however, is whether there is any genuine interest in exercising such reflection and making important choices with regard to the United States Constitution.
VII. States’ Role in the Modern Nation: On “Crackpot Legalism”
It is obvious that one cannot understand the 1787 Convention without paying full attention to the importance of states. Indeed, an enduring controversy in American political thought has to do with how we actually explain the foundation of the Constitution. Is it the product of a decision by “We the People,” as the Preamble might suggest and as John Marshall seemed to agree in McCulloch v. Maryland? Or, instead, were Thomas Jefferson and James Madison correct in the 1798 when, in the Kentucky and Virginia Resolutions, respectively, they declared that the Constitution was in fact a compact created by the constituent states of the Union? Indeed, Ronald Reagan saw fit in his 1981 Inaugural Address to “remind” his listeners of the altogether debatable premise that the states created the greater United States. He did not note that this “compact theory” had become, especially through the thought of John C. Calhoun, the basis for the legitimation of secession.
A slim five-justice majority rejected the compact theory in the 1995 case U.S. Term Limits, Inc. v. Thornton in favor of the Marshallian understanding, but that was long ago in a land that increasingly seems far away. It would not be at all surprising if a majority of the current Court believes that Madison and Jefferson basically got it right in 1798, especially given its proclivity to emphasize state “sovereignty” and otherwise embrace the importance of federalism.
It is often said that the “United States” changed from a “they” to an “it” after the Civil War. That is, before the War one generally referred wrote that “the United States are.” Afterward, however, the proper grammar was “the United States is.” We had finally become a genuine Union, not an agglomeration of States. But it would be foolish to assume that this basic fissure in American political thought has been definitively resolved.
Why is this important in considering not only constitutional amendment in general, but the prospects regarding a new convention in particular? The answer has already been hinted at: Would “We the People” be confined by the precedents established in 1787 and the text of Article V, both of which are heavily state-centered, or would we instead emphasize the reality of a United States and a truly national citizenry empowered to make fundamental choices as to how to be governed? Conservative lawyers like Robert Natelson, for example, argue that any new convention would of course follow the template of 1787, which means each state gets the same singular vote, determined by polling the delegates that will, also of course, be chosen by the state legislatures themselves or, possibly, state elections. But the key is state-centeredness. I strongly believe that no such convention would be regarded as truly legitimate by the majority of the country that today live in only nine of the fifty states comprising the Union. (This assumes, also, that the residents of Puerto Rico, defined by some as the world’s largest existing colony, would play no role at any such convention because, after all, it is a territory and not a state, as is true also of far smaller entities like Guam and the United States Virgin Islands, among others. And there is also the matter of the District of Columbia!)
The radical sociologist C. Wright Mills during the 1950s coined the term “crackpot realism” to refer to those ostensibly “realist” theorists of international relations who believed that nuclear war should be regarded as a genuine strategic possibility. Thus Stanley Kubrick’s classic movie Dr. Strangelove. The term may be a bit harsh, but it captures a genuine reality, which is the ability of individuals who are by any measure well-educated and even, in their own ways, brilliant, to become so enmeshed in their “disciplines,” particularly if they are regarded as sufficiently esoteric to be beyond criticism by mere laypersons, that they become unable to detect some decidedly practical problems.
So I am tempted to adopt the notion of “crackpot legalism” to refer to certain kinds of legal arguments that make a modicum of sense when proffered at a seminar table or in a faculty lounge but, to put it mildly, ignore the realities of contemporary American life and the concomitant need for “reflection and choice” about the potential need for radical constitutional reform. I would place Natelson’s argument in this category. It is not demonstrably wrong. Article V is notoriously unhelpful in providing answers to the specifics of how a new convention would be organized. Why not simply adopt the answers offered in 1787? If it was good enough for Washington and Franklin, why shouldn’t it be good enough for us? That is especially tempting to those entranced by “originalism” and the felt need to follow the rules ostensibly laid down almost 240 years ago.
The answer is not only that it is strikingly difficult to figure out exactly what those rules might be. But there is also the even more important reality that the very conception of the United States, as well as the practical reality of imagining oneself as an “American,” was almost totally different then from what it is now. Even if that is not true of every single “American,” it is true of enough that I am confident in my fundamental assertion that an attempt to replicate the convention of 1787, even putting to one side that there are no analogues to Washington and Franklin, would be treated as illegitimate. As the Supreme Court declared in the Reapportionment Cases of the 1960s, we as a society are committed to some notion of majority rule and what the Court called, even if it has never deigned genuinely to define, “fair and effective representation.” The Court swept aside so-called “little federalisms” by which the “upper house” in most states (though not, of course, Nebraska!) were analogues of the United States Senate. Thus, my home state of North Carolina assigned a single senator to each of the 100 counties; this meant that Henderson County, with approximately 30,000 people, had the same representation as did Mecklenburg County (Charlotte), which then had about 200,000 residents. The majority of the Court invalidated that, and properly so. Chief Justice Warren basically admitted that the United States Senate was indefensible under the Court’s doctrine, but there was nothing to be done because, after all, equal representation was written into the Constitution itself. States, on the other hand, were subject to the Equal Protection Clause of the Fourteenth Amendment, and “little federalisms” were doomed.
What I am tempted to call “mindless textualism” may be correct with regard to assessing the constitutionality of Wyoming’s having the same number of senators as California. But this is merely a legal argument. It does not go to the perceived legitimacy, in 2025, of the decision made in 1787 to accept the “lesser evil” of equal representation rather than run the risk of not being able to replace the “imbecil[ic]” Articles of Confederation. After all, the same consequentialist analysis undergirded the defense of protecting enslavement. Legal arguments, especially those rooted in text, speak only to meaning. If lawyers have any genuine expertise, that is it: to ascertain the meaning of existing documents, whether wills, statutes, or constitutions. That is surely important, but it is vital to emphasize the difference between “legal interpretation,” on the one hand, and wisdom, on the other. There is no reason to believe that lawyers as a group have any greater wisdom about what legislation should be passed—or, more to the point, how constitutions should be designed or amended—than any other group or even the populace in general. That is one reason we have general elections, after all.
Just as one can speak perfectly horrendous sentences in impeccably grammatical form, so it is possible to reach similarlyl horrendous conclusions while remaining within the rules of “legal grammar.” When engaging in what might be termed “ordinary” legal analysis, we often overlook this difference, secure in the belief that, overall, we are better off remaining within the rules even if that predictably leads to sometimes unfortunate results. (Another name for this is rule utilitarianism.) But when we embark on designing a new constitution or even assessing our current Constitution, one must necessarily give priority to wisdom, as did the Framers themselves, rather than feel confined by the limits of an often wisdom-indifferent legalism.
This is one reason by my favorite paragraph in the entire 85-essay corpus of The Federalist is the conclusion that James Madison wrote to Federalist 14:
Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? …. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate….
Perhaps one could summarize Madison, at least in this essay, as saying, “think for yourself and be audacious if need be to address your ‘own situation,’ which is likely to present distinct challenges calling for distinctly new solutions.” Readers will note, undoubtedly, that James Madison has been not only frequently quoted in this essay, but also that he has been cited for potentially competing propositions. We might view Madison as quintessentially American. Like Walt Whitman, he contains “multitudes”; like Ralph Waldo Emerson, he can contradict himself.
In any event, the primary arguments in 1787, as in what Eric Foner has labeled the “second Founding” of Reconstruction, were political, not legal. What did the country need, given the dire circumstances? That was the question on the minds of almost all of the delegates in Philadelphia or, for that matter, in Washington in 1868.. Similarly, should a new constitutional convention actually be held, it would require a recognition by literally millions of Americans, across the political spectrum, that the present system is indeed almost fatally flawed and in need of fundamental change after suitable “reflection and choice.” It is not clear exactly what role lawyers would (or should) play at the convention. This might be especially true with regard to any rules for ratifying the proposals put forth by convention delegates.
No one argues that the convention would be truly “plenary” in the sense of having the power to adopt a new constitution itself. Everyone agrees that there would have to be some process by which “We the People” could plausibly be said to approve any changes. But would that process necessarily have to be the one set out in Article V itself, which gives veto power to 1/4+1 states? These thirteen smallest states currently comprise just over 15 million of the approximately 347 million residents of the country in 2025, or just over 4.3%. Even if one grants the unlikelihood that only these thirteen would constitute the blocking minority, it is not particularly comforting if the percentage even sextuples to slightly over 25%. That still means, by definition, that states with almost 75% of the overall population could be stymied by far smaller states with far fewer people.
What triggered the American secession from the British Empire in 1776 was not lawyers’ arguments per se, though some did, plausibly or not, claim that Parliament was without authority to tax its colonial subjects. Rather, it was the felt sense of illegitimate domination by an uncaring British government ensconced in London and the belief that those who viewed themselves as “Americans” were entitled to genuine self-government. The alternative, argued otherwise sober “patriots,” was to accept a condition of “slavery” to the illegitimate domination of the British ruling from London. That should no longer be acceptable to the singular “people” who now comprised the new United States struggling to be born. Similarly, although the lawyerly Lincoln made a variety of arguments against the legitimacy of secession in 1861, his ultimate trump card, so to speak, was an appeal to the “mystic chords of memory” that presumptively bound all Americans together in a single Union. That was obviously not enough, and, as he put it in the Second Inaugural, “the war came” and transformed American constitutionalism.
A classic work in political science by Tom Ginsburg and Zack Elkins, on the “endurance of constitutions,” demonstrated that most constitutions do not, in fact, endure for long periods of time. Why would one expect otherwise, given that conditions change and “reflection” might well lead one to realize that solutions that might have made sense at an earlier time, such as the Electoral College (or single-member districts), make little or no sense as the country develops? The same Americans who are more than willing to amend or even replace their state constitutions have been reluctant to take seriously the possibility that the national Constitution is in need of similar updating. Indeed, one might even be faithful to what is most admirable about the “Framers”—their willingness to engage in no-holds-barred confrontation with the felt needs of the moment—in doing so.
There can be no doubt that embarking on a new constitutional convention would be audacious and risky. This might, in fact, not be the “perfect” time for a convention! But the real question is whether it is even riskier to continue venerating the 1787 Constitution, even with its amendments, in the complacent belief that it is the solution, rather than a contributor, to the problems that have created a polarized country where speculation about a second civil war is the subject of serious discussion. In any event, one can wonder exactly how much lawyers will contribute to such discussions as against an aroused populace that views itself as an awakened “sovereign” that wishes to re-engage in reflection and choice about fundamental issues of governance.
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[1] I am grateful not only to the NCC and its president, Jeffrey Rosen, for their invitation, but also to Mark Graber and Jack Balkin for their usual incisive comments on an earlier version of this essay.
[2] I will not rehearse my “bill of particulars” against the Constitution, which I have set out in three books over the past 20 years: OUR UNDEMOCRATIC CONSTITUTION (2005); FRAMED: AMERICA’S 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE (2012); and FAULT LINES IN THE CONSTITUTION (with Cynthia Levinson, 3rd ed. 2025).
[3] See Jack M. Balkin & Sanford Levinson, Constitutional Dictatorship: Its Dangers and Its Design,” 94 Minn. L. Rev. 1789-1866 (2010). See also Clinton Rossiter, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES (1948), available at https://archive.org/details/constitutionaldi031287mbp/page/n9/mode/2up
[4] See Jack M. Balkin & Sanford Levinson, “The Problem of ‘Popular’ ‘Sovereignty,’” in 5 Liberties, No. 1 (Autumn 2024), p. 135-156.
[5] 1 Records of the Federal Convention of 1787, at 362 (Farrand ed., 1937) (speech of June 16, 1787).
[6] Quoted in Jon Elster, Constitutional Bootstrapping in Philadelphia and Paris, in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives 72 (Michel Rosenfeld ed., 1994).
[7] 1 Records of the Federal Convention of 1787, at 283 (June 18, 1787) (emphasis added). See also id. at 346 (George Mason).
[8] See https://constitutioncenter.org/news-debate/special-projects/constitution-drafting-project.
