Pros and Cons of Constitutional Conventions
By Bob & Christina Powers
Mounting frustrations with the size and scope of the United States federal government have ebbed and flowed over the years with calls for a Constitutional Convention, touted as the solution for controlling an leviathan government. Mark Levin’s current book, The Liberty Amendments: Restoring the American Republic, promises a “quick fix” but at what cost? Political commentators Sean Hannity and Rush Limbaugh have also taken up the cause. In the past such movements always died when the public realized the consequences of such dangerous undertakings.
There have been two Constitutional Conventions in our history and both were held in secret. The first was to alter the Articles of Confederation. Rhode Island chose not to participate for unknown reasons. When convened, the Articles (all delegates being in agreement for revision) were completely abandoned and our new US Constitution was born. Although our current Constitution is a fine document by all accounts, some things were lost such as the unanimous ratification among the States for amendments The Constitutional Convention, in effect, became a “runaway” convention in which the prior form of government was scrapped and a new one created, all in secret.
The second, convened on February 4, 1861. Forty-three delegates from South Carolina, Alabama, Mississippi, Georgia, Florida, and Louisiana assembled in Montgomery, Alabama, to write a provisional constitution for the Confederate States of America, also done in secret.
The Framers of our Constitution recognized the need to address unanticipated issues and changes that would arise in the future that could not be addressed specifically in the new Constitution and thus, Article V was created which states:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in the Case, shall be valid to all Intents and Purposes, as part of this constitution, when ratifies by the Legislature of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress; ….
In other words, there are two ways to make changes to the Constitution (Amendments): (1) by two-thirds vote by both Houses of Congress; or (2) on Application by the legislatures of two-thirds of the States calling for a convention for proposed Amendments, known as a Constitutional Convention or Con-Con. Amendments are then ratified by three-fourths of state legislatures or state conventions.
In 1983, the Con-Con movement hit a high point when Missouri became the 32nd State (out of 34 required) with calls for a Balanced Budget Amendment. Since then, several States have considered calling a balanced budget Con-Con but all have decided the risks were far too great. Thus far, 11 States have withdrawn their previous endorsement.
Since then, there have been numerous attempts to resurrect a Balanced Budget Amendment in different guises. In 2009 Prof. Randy Barnett’s proposed “Bill of Federalism” (10 amendments) was marketed to Tea Partiers by the Wall Street Journal and Michael P. Leahy (Top Conservatives on Twitter) as a threat (nuclear option) to force Congress to listen to conservatives. Surprisingly, even Judge Napolitano (who should know better), made the Con-Con pitch. Currently, none gathered enough national steam.
Proponents cite the fact that (1) three-fourths of the States are needed to ratify the Amendment(s) and thus, is a strong enough deterrent against “bad” amendments, and (2) that State legislatures can limit the size and scope of a Con-Con (to which history proves and honest proponents admit is false). To quote Prof. Randy Barnett “An amendments convention is feared because its scope cannot be limited in advance” and yet he advocates in favor of this remedy.
Opponents of Con-Cons cite the risks involved. They are : (1) Once called, it becomes its own authority and cannot be limited, (2) It can become a “runaway” convention in which our current form of government and its constitutional protections are completely thrown out and a new form of government is created, (3) Given the current caliber of our representatives, our delegates cannot be expected to have the knowledge, understanding or commitment to limited governance, liberty and freedom shared by the original drafters of our Constitution. In fact, many have been busily disregarding and disrespecting it for years despite their oaths of office when it serves their own interests.Additionally our representatives are increasingly beholden to special interest groups and corporations, and (4) The public’s lack of education on the Constitution and its virtues has led to increased government dependence that are mitigating factors in favor of bigger government.
Opponents have some impressive heavyweights on their side when arguing that Con-Cons are impractical and impossible to limit. They include jurists and legal scholars of all political persuasions, including James Madison, Chief Justice Warren Burger, Supreme Court Justice Arthur Goldberg, Harvard Law School Prof. Lawrence Tribe, Notre Dame Law School Prof. Charles Rice, Yale Law School Prof. Thomas Emerson, and Stanford Law School Prof. Gerald Gunther and Judge Robert Bork. Quoting Justice Warren Burger, “A Constitutional Convention today would be a free-for-all for special interest groups, television coverage, and press speculation.”
Considering the risk factors inherent in a Constitutional Convention at a time when our country is increasingly polarized, one has to ask, why choose the “nuclear option” when the Constitution provides for more practical, safe remedies? Many of the problems we face today are a result of changing or misinterpreting the Constitution in the first place. Why pass more laws or amendments, if the government refuses to follow the ones we have? They will not follow a balanced budget amendment if they don’t want to. We need to address the real problem of our government violating the laws we have. The people MUST elect and then INSIST our representatives be held to account in faithfully upholding the LAW –THE CONSTITUTION (which limits the size and scope of government in the first place). Many of our problems would be solved as a result.
Furthermore, problems can and need be addressed directly in the States by refusing to allow or recognize unconstitutional laws within their borders and refusing to be controlled by a carrot and stick method of force (taxes) used by the federal government. The process of nullification is the rightful remedy for States, not to be taken lightly, of course, but as a last line of defense against a federal government that has broken its limits. The States created the federal government not the other way around. Enforcement of the Constitution is more practical, cost effective and less risky than revising the Constitution. Don’t be fooled by the false promises for a quick and easy fix. It will cost you more than you bargain for.
Bob & Christina Powers are a couple of Simi Valley activists who recently became Citizen Journalists, too
Editor’s note: Mark Levin will be speaking at the Reagan Library on 9/7/13, in part on this subject, so the timing of this article was excellent.