Scholars debate whether time is right for amending the Constitution

By Robert Barnes
Washington Post Staff Writer
Sunday, November 28, 2010; 6:43 PM

Here's how it went down on the Federalist Society stage at the group's recent national convention:

The liberals urged caution, and judicial modesty. Trust the people and their elected representatives, they said; elections have consequences, and the political process is where policy should be made, not the courtroom.

The conservatives, on the other hand, called for revolution. Fight intrusive federal laws in the courts, amend the Constitution, form interstate compacts to defy laws from Washington, and - better yet - demand a constitutional convention.

It seemed a little jarring, coming just moments after Senate Republican leader Mitch McConnell (Ky.) had stood on the same spot and assured the conservative constitutionalists that the recent election meant they had won.

Republicans are "serious" about either repealing the health-care plan from President Obama and the Democratic Congress or urging federal courts to strike it down, McConnell said. The era of expansive federal policies is over, he said. Don't even think about trying to raise taxes, on anybody.

But the panel that followed - five constitutional scholars and a federal judge discussing "Enumerated Powers, the 10th Amendment and Limited Government" - questioned whether such issues of federal power should be entrusted to politicians. The 10th Amendment is the tea party's favorite: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Michael Stokes Paulsen, a professor at the University of St. Thomas Law School in Minnesota, said he was there to deliver bad news. "Washington, D.C., remains in substantial part enemy-occupied territory for those who favor any serious meaningful, permanent reforms that would effectively limit national government," he said.

He thinks the federal government has so stretched its constitutional limits that the only way to snap it back into shape is with a constitutional convention called by the states.

He acknowledged the very idea created a "split between the buttoned-down, starched-shirt real, true conservative conservatives who fear a constitutional convention and the rabble-rousing, redneck tea party types who say, 'Yeah, bring it on.' "

Paulssen counts 32 states that at one time or another called on Congress to convene a constitutional convention, just short of the 34 needed. He was in the "bring it on" camp, along with former Texas solicitor general R. Ted Cruz, who sees the past election as "an incredible moment in time" and predicts a "real move in the coming year" toward calling a convention.

As Supreme Court Justices Antonin Scalia and Stephen G. Breyer have continued their debate on how to interpret the Constitution, Scalia has signaled both support for and opposition to the new goals of conservatives to make changes.

On the one hand, he said at a recent event at Texas Tech University that "there's very little that I would change" about the Constitution, adding that activists should not "mess" with it.

But Scalia's example of the trouble that comes with amendments - one he has voiced before - was one with which tea partiers agree: the 17th Amendment, which allowed senators to be elected by the people rather than selected by state legislatures.

"We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the 20th century," he said.

Cruz's vision of a constitutional convention would produce amendments requiring a balanced budget, mandating a supermajority for raising taxes and giving the president line-item budget veto authority.

But J. Harvie Wilkinson III, the longtime conservative judge on the U.S. Court of Appeals for the 4th Circuit, wondered how Cruz and others could be so sure of the outcome.

Playing both moderator and devil's advocate, Wilkinson noted that there are no ground rules for a constitutional convention and said it could takes years to straighten out what such an event might look like.

"Are we playing with fire?" he asked. "The American Constitution as it exists by and large has served this country well for two centuries. Do we really want to take the chance on trading it in?"

Harvard law professor Mark Tushnet said it made no sense to amend the Constitution just because one side saw the opportunity to, in Cruz's words, "lock in" restraints on government.

"It's very had to defend amending the Constitution on the grounds of today's current viewpoint," he said. The idea of "amending the Constitution to preclude future democratic decision-making, that one's a little puzzling to me," he added.

University of North Carolina law professor Michael Gerhardt joined Tushnet in the view that the elected representatives of the people should be the ones who work out the nation's policy differences, without amending the Constitution or involving the courts.

"Elections matter," he said, adding: "One of the things we've got to come to terms with is whether or not we still believe in politics."

© 2010 The Washington Post Company