Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [134]
So our founding fathers decided to break the rules. After the failure of a conference at Annapolis in 1786, Congress convened a new conference to be held in Philadelphia in 1787. The “sole and express purpose” of that conference was to promise amendments to the Articles of Confederation to “render the federal constitution adequate to the exigencies of Government & the preservation of the Union.”4
Amendments. Not a new Constitution. But quickly the organizers of that convention convinced those present (and not every state even deigned to send a delegate) to meet in secret. (No WikiLeaks to fear.) The windows were shut. And for almost three months the Framers banged away at a document that we continue to revere today.
They took to this exceptional path because they recognized that sometimes an institution becomes too sick to fix itself. Not that the institution is necessarily blind to its own sickness. But that it doesn’t have the capacity, or will, to do anything about it.
Sometimes an institution, like an individual, needs an intervention, from people, from friends, from outside.
Our Framers recognized this about their government. They had just lived it. But they also recognized the disruption and danger that come from revolution. Instability at some point is death, even if too much stability is also death. It may well be, the Framers thought, that the only way to restrain Washington was with “a well regulated Militia” (and hence the Second Amendment). But they hoped that restraint could be achieved through more peaceful means.
So the Framers added to our Constitution one more way out. Obviously, to them at least, the people always retained the right to “alter or abolish” their government. That was the premise of the Declaration of Independence, and they didn’t mean to deny that principle through their new Constitution—especially since the authority to enact that new Constitution (by violating the terms of the Articles of Confederation) depended upon it. (Indeed, as Kurt Lash argues, “it is at least plausible the Preamble and Assembly Clause presented by Madison to the First Congress were intended to explicitly recognize the people’s right to assemble in convention and alter or abolish their Constitution.”5 Reflecting a similar understanding, Edmund Pendleton said at the Virginia ratifying convention that if Congress refused needed amendments, “we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse.”6)
In addition to these extraconstitutional means of constitutional reform, however, the Framers added two more tools that were internal to the Constitution itself: First, a simpler method by which Congress could initiate amendments to the Constitution. Second, a more complicated method by which “a convention” could propose amendments to the Constitution.
Under the first path, Congress proposes an amendment to the Constitution, if two-thirds of Congress agree. Under the second path, Congress calls “a convention for proposing Amendments” if two-thirds of the state legislatures ask it to. Amendments proposed either way get ratified if three-fourths of the states agree.
The first path has been the exclusive path for all twenty-six amendments to our Constitution. Every amendment has been first proposed by Congress and then ratified by the states.
The second path has never been used. Indeed, in the first one hundred years after the founding, there were only ten applications calling for a convention submitted by the states to Congress.7 But even though no convention has been called, the calls for a convention have had an important reformatory effect, most famously in the context of the Seventeenth Amendment (making the Senate elected), when the states came within one vote of calling for a convention, and Congress quickly proposed the amendment the convention would have proposed.8
Even