Commentary: It’s time to change our Constitution

California Governor Gavin Newsom recently proposed a gun control amendment to the U.S. Constitution, which would raise the federal minimum age to purchase a firearm from 18 to 21, mandate “universal background checks,” institute waiting periods for gun purchases, and ban “assault weapons.” To implement this amendment, California has called for a meeting of a convention of states.

While the content of the governor’s proposed amendment is misguided and could never be passed, by calling for a constitutional convention, Newsom and his fabulous hair are pointed in the right direction. The United States needs, badly, a convention of states that will consider a broad overhaul of the Constitution.

The United States is on the brink. It is experiencing profound political agitation, and its population is drastically divided in its opinions and beliefs. The price of hesitating to hold a convention may be to translate our unfortunate political psychology into actuality, with catastrophic results, and not just for Americans. Such a cataclysm would not confine itself to the boundaries of the United States. The only winners in such an event would be hostile foreign powers, China especially.

For those who believe the Constitution today works as intended, stop reading now.

For the rest of you, I will point out that our Constitution was never intended to be static. It was amended 12 times in its first 15 years. It was then unchanged, other than by the Supreme Court in Dred Scott v. Sanford (1857), until after the Civil War devastated the nation.

From 1865 to 1971, the Constitution was amended another 14 times. Since 1971, it has not been amended, except by the ratification of the 27th Amendment regulating congressional salaries, which had been on the edge of ratification, always needing the additional support of just a few more states, since 1789. But the 27thAmendment doesn’t count as an exercise of concurrent public will in the manner that amendments usually do. So it is tolerably fair to say the Constitution has not been amended by a full and contemporaneous process in 52 years.

I have many friends on the right who have told me, in blunt terms, that a convention of states is a terrible idea. They say there is no telling where it could lead, and the most likely place it would lead is leftward.

But the fear that a convention of states would produce an intolerably leftist charter is misplaced. First, the hurdle for adopting an amendment or new charter is quite high, requiring three-quarters of the states, and this depends on a broad consensus. Second, if a convention actually did produce a leftist charter, such a charter so adopted would at least be better than the production of a similar one by other means, which is what we have now.

Last, if an intolerably leftist charter were adopted, my experience, particularly as a parent, tells me it would not be tolerated, and so in one way or another the effort would fail. Moreover, if I am right about the precarious state of American affairs now, the country would be no worse off than it is.

Some conservatives will object that amending the Constitution in any serious way, let alone adopting a new charter, is simply “not conservative.” This objection maintains that all change is the opposite of conservative. Further, the objection runs, the Constitution is a miracle of the genius of America’s founding statesmen. To change such a good thing is certainly not conservative.

Naturally, in the face of such an objection, we may immediately observe that change occurs whether we protest it or not. At the conception of the Constitution, the United States — in scope, communications, composition, and relationship to the larger world — was little like the nation of 330 million it is today.

Since the outputs of the Constitution cannot reasonably be expected to be the same with such radically different inputs, it seems strange to say that addressing such fundamental differences requires no fundamental alteration. Changes are necessary merely to keep things more the same.

It seems stranger still to maintain this in the face of the evident incompetence and corruption — in all three branches — that no fundamental alteration could drive better behavior in the national government and inhibit the worst sorts of conduct, such as open bribery, careerism, and skylarking, and the worst sorts of opinions, such as the independence of administration, law enforcement, and military affairs from elected power.

Apart from this, and more importantly, there is a danger in conservation for conservation’s sake. “That’s not conservative” is not an argument because the statement rests on a void: conservative of what? “Conservative” as a principle has little meaning apart from an understanding of what is being conserved.

Publius in Federalist 49 famously argued that a charter infrequently changed is more venerable and therefore sturdier and a better inducement to rule of law. The argument is fair enough, but its recitation today tends to obscure some important context.

Madison, to whose pen Federalist 49 is attributed, argued for the replacement of a recently adopted and failed charter, the Articles of Confederation, by a means not lawfully permitted within the terms of that charter. The Articles required unanimity to amend, and the new Constitution was to be effective for the adopting states when a mere nine of 13 states ratified. For Madison not to say something then against an excess of impulse to change a charter would have been to invite chaos. But today we suffer a deficit of such impulse, and that deficit is inviting chaos. The advice today is thus altogether different from that of Madison in 1787 issued through Publius.

Conservative thought today suffers from an excess of blind reverence for the Constitution and a deficit of reverence for its true authority: consent. As a result, conservatives choose to defend a charter that is altered by practice, accumulated precedent, and chance, rather than to do as their forefathers did, which is to establish a charter by choice.

Now we live under a Constitution that is no longer what it was and cannot be that again, under a delusion that its “conservation” is conserving a tradition and that that tradition is good. This comes at the expense of the conservation of the tradition and principle of choosing our form of government by conscious and deliberate adoption.

The consent embodied in periodic elections — and only one national one, the election of the president, which is a simple constitutional majority of electors — is not just inferior to the consent reflected in the adoption or amendment of the charter but also destructive of that broader consent when the method of periodic elections and battles over the composition of the Supreme Court are used over time to modify the charter.

But, comes the objection, a new charter would include terms I do not like, some of which will be downright bad. To that I say, of course it will. The original Constitution included terms no one liked, which were bad, but which were necessary to reach a compromise. All competent makers of agreements know this.

Understanding compromise is part of the essence of consent and the habits of a people who can live by their own rule. Further, the real alternative before us is not the restoration of the old Constitution (sorry, that is not going to happen) but to live under one continually amended by other means, without deliberation, without a supermajority, and always moving in one (leftward) direction. That direction ends in empire, a destination at which we may already have arrived and which can be escaped only by the acts of deliberative consent and compromise that distinguish a republic.

Few things could be more traditionally American, as well as reasonable, than a convention to deliberate about how we should govern ourselves. We can look to the best traditions of Americans to see what we ought to seek to conserve, as opposed to one particular charter. That tradition of consent stretches back in time, very far.

What Martin Luther started in 1517 led to a broad abandonment of monarchical rule over the conscience of reformed Christians. Soon the reformers formed communities, elected to use different practices, and chose to organize their otherworldly affairs under agreements and understandings, written and unwritten. These same reformers then began to organize their secular affairs by the same methods they used to organize their otherworldly affairs and did so alongside the developed English habit of wresting rights from kings, which started at Runnymede with the Magna Carta.

When the separatist Pilgrims landed at Plymouth, they undertook to establish a charter — the Mayflower Compact — but did so under the name of their “dread sovereign Lord King James.” Eighteen or so years on, their Puritan cousin, Thomas Hooker, sermonized on consent as the basis of government, based on an interpretation of Deuteronomy, without regard to the authority of a king. Hooker in 1639 drafted theFundamental Orders of Connecticut, which was the first charter adopted in the colonies that did not call upon monarchical authority for its legitimacy.

The Reverend John Wise in 1684 fomented a rebellion in Boston against Governor Edmund Andros, who as governor of the Dominion of New England sought to revoke the existing charters of New England. Down in Hartford, rather than allow Andros to confiscate Connecticut’s charter, Captain Joseph Wadsworth hid the charter in an oak tree, which became the famous Charter Oak.

By the time of the American Revolution, the tradition of government by charter chosen by the consent of the people was bred in the American bone. The United States resolved its independence on July 2, 1776, pursuant to the Lee Resolution, and in the tradition of rule by consent, to announce this act to the world, its leaders propounded secular rationalizations of their long-established practice in the Declaration of Independence.

That is the tradition that needs to be conserved: the adoption of a charter by consent. The progressivism to be opposed? The modification of a charter by other means. And so, in this way, I find myself aligned with Governor Newsom.

Editor’s note: A version of this commentary was published originally at Chronicles magazine.

J. Eric Wise is an attorney practicing in New York specializing in distressed markets.