The Constitutional Convention of 1787 was called to fix the Articles of Confederation.
I note this as there was a bill in the legislature to hold a Constitutional Convention to amend the Constitution to address some hard right concerns, those mostly amounting to the concept that courts and lawyers trample on the original meaning of the text and that legislatures can throw the penalty flag on that and, they believe, fix it.
At the same time a bill just was defeated in the legislature whose backers repeatedly used the words "the original Constitution". This is very obviously part of a current right wing campaign, as not only was the Wyoming legislature considering it, but right at nearly the same time Lauren Boebert, Colorado's hard right Congressman, was commenting on the Original Constitution. As already noted here, that bill has a weird concept of the "original Constitution" and asserts that its a "contract". That's wrong, but its dangerously wrong philosophically. The reason for the bogus assertion its a "contract", which it isn't, and which is an unconstitutional interpretation of the Constitution, becomes clear, however, if you consider the bills goals.
All of this comes about due to a lot of ignorance about the Constitution and the age old desire to bend how its viewed to your own viewpoint on how it ought to read.
First off, let's deal with this. The "original Constitution" of the United States isn't the document that came about due to the 1787 convention. Arguably, the "original Constitution" of the country was the hopelessly vague English Constitution which is a concept rather than a document, but it what we derive much of our understanding of the relationship between the government and the people to be. To the extent its written, it includes but isn't limited to the Magna Carta, which principally serves to establish the point that the sovereign is subject to the people at some point, although in its original form it served to point out the not novel concept that English kings served subject to the implied will of the nobles.
While Americans rebelled, at first, partially due to protect the "rights of Englishmen", they obviously needed an organic document for their new republic and that document was the Articles of Confederation. Like it or not, that's the original constitution, if the English Constitution wasn't. When people run around talking about the "original constitution", they should be aware of that.
A constitution is simply an organic documents. It's the founding central law, not a contract, of an entity. In terms of sovereigns, it's the Really Big Law. The "supreme law of the land". Its no more contractual than a traffic ordinance is.
Conceptually, of course, the thesis behind the U.S. Constitution is that the "several states" were the supreme sovereigns, sort of, more or less, or maybe not, at the time they came together. In actuality, of course, they'd already come together for the Articles of Confederation, so at that time they already had agreed to transfer a level of sovereignty to the Federal government. So, even if you are big on state sovereignty, and the backers of these concepts are, you have to concede that at least with the nation's second constitution, the one we call "The Constitution", the states transferred large elements of sovereignty over to the Federal government. Once you do that, you don't get it back. That would be antithetical to the concept. And its been tested in the courts following the Civil War, so that question is more than decided.
Of course, the nation would just as soon forget the Articles as they didn't work very well, so we have, along with the fact that George Washington was not, as so often claimed, the first President. But oh well.
It's important, however, to note that the next part of this story is that the Constitutional Convention of 1787 was convened to fix the Articles of Confederation, not to draft a constitution.
But once you convene a Constitutional Convention, there's absolutely no earthly way to limit what it does. None. People who insist that state legislative enabling acts can do that are in a fantasy world. No, no, no, they can't. Yes, I know that there are some legal scholars that hold the opposite, but they're completely out to lunch on this issue. If they were right, the Constitution would be invalid and we'd be right back to the Articles of Confederation. Nobody believes that.
So, at a Constitutional Convention, everything is on the table.
If you don't believe that, just ask the Articles of Confederation.
Of course, it'd still have to be ratified by the states. Which brings us to this. Anything anyone feels strongly enough about such that the proposed amendment can't get through Congress isn't going to be ratified by the states. So, in all likelihood, a convention would be a huge noisy waste of time.
And if it wasn't, based on the Wyoming bill up the other day, it'd be a disaster, full of proposals to keep those nasty lawyers from arguing the law and the Supreme Court from doing its job, and instead allowing all 50 state legislatures to decide what the Constitution meant.
This gets back to the "contract" theory, which the bill in front of the legislature the other day would have required members of the proposed committee to adhere to by way of an oath, a charming view of oaths in light of the fact that legislators in every state and at every level have a pretty loose interpretation of their duties under oaths anyhow. The gist of the concept is, it's not a law, its just a big contract, and we get to decide what it means just like the other contracting party.
It's not a contract, and that's not how contracts actually work. What would actually occur is that the first time a legislature actually stated some law it didn't like was unconstitutional it'd end up in court and the court would decide the matter, likely deciding whatever it was, was.
If you thought the US was darned near ungovernable now. . .
And, it should be noted, those who take the view that this will solve all their problems ought to be aware that liberal states would do the same thing. Wyoming might decide some gun control law was unconstitutional but Colorado might decide that "arms" meant muskets only. We soon wouldn't like the results much.
By the way, of the 55 framers of the Constitution, 32 were lawyers.
And, also, while the backers of the bill feel that the language of the Constitution is so clear that anyone can read it and know just what it meant, the framers themselves were arguing about that during the ratification process. They didn't all agree what it meant. The much cited Federalist Papers, for example, were an argument, not an explanation.
Added to this, it should be noted, the mythical "original Constitution" is meant, by those supporting it, to apparently include the Bill of Rights. Lauren Boebert took some heat on this the other day for this Twitter comment.
People blasted her noting that the "original Constitution" didn't include the Bill of Rights. That's correct, it didn't. I don't think she meant that the only part of the Constitution that counts is the part before the Bill of Rights and what she actually is arguing is the same thing the bill backers in the legislature were arguing the other day, which is that lawyers and courts, in their view, have messed around and applied all sorts of interpretations which are outside of the text. And that is in fact fairly substantially true. Her way of stating it however, does bring up the irony here that, if you don't like something about the Constitution, there's something that can be done about it, amend it.
A problem there, however, is that the backers of the bill argued that people should look at what the framers meant, and the first Chief Justice, and be informed by Common Law and Natural Law. I don't disagree with any of that, as I'm an originalist in terms of Constitutional interpretation, but that argues for appointing judges who are originalist.
But that means appointing people, really, who were largely of the same background as the framers. . . lawyers. It's easy to state that you'll know just what they meant, and in some cases you really were, but if you have to resort to Common Law and Natural Law, well you have to be schooled in them. Indeed, part of the modern problem is that hardly anyone is schooled in Natural Law.. And if a person is being given arguments that cite to something like Natural Law, and haven't studied it, they're prey to significant error.
Instead of courts, the bill propose that legislatures just nullify acts that legislators feel are unconstitutional, after pondering the text, and consulting Natural Law, etc., which isn't how the Constitution itself works. The Supremacy Clause would make any such attempt completely invalid, and from the earliest days of the Supreme Court's existence, the Court has held that it gets the last say on what is, or isn't, Constitutional. So right from the onset there's a problem with what they're proposing, as its unconstitutional and not at all what the framers had in mind. If a legislature attempted to act in this fashion, it'd be acting unconstitutionally under, as they say, "the original Constitution".
Added to that, a lot of the people who hold this mindset have interpretations of the Constitution which themselves are far outside of the text. On the hard right of the political spectrum, which is where this movement comes from, the Supremacy Clause doesn't even seem to exist, nor does the Commerce Clause, and many seem to have a quasi religious concept of the Constitution and what it means. People all the time complain about their "rights" being violated as if they're protected by the Constitution when what they're complaining about doesn't Both the right and the left do this, but recently the right has been loud about it (but the left has often been very loud about it in the past itself). Originalism does mean not interpreting the document to read the way you don't like, as Boebert meant to suggest, but it also means not doing that yourself.
Finally, there's the tricky matter of the "incorporation" clause of the Constitution, which relies in large part on that very "judge made law" that the backers of these things hold in contempt. As originally written, these restricted Congress, not the states. So, for instance, Congress couldn't restrict free speech, or establish a national religion, but states could do just that.
Or again, take the Second Amendment. Congress couldn't restrict the right to keep and bear arms. . .but could states? Hard to say, but probably. And if Wyoming argued that "the original Constitution" kept the Federal government from, let's say, doing something environmental, New York could argue that the Federal government couldn't ban guns but New York sure could.
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