Pros and Cons of Constitutional Conventions

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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:

ArticleVThe 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.

TenthAmendment

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.

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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.

32 Responses to Pros and Cons of Constitutional Conventions

  1. Citizen Reporter August 25, 2015 at 9:47 am

    NINE MYTHS FROM THE CONVENTION OF STATES PROJECT

    http://www.newswithviews.com/guest_opinion/guest296.htm

    Reply
  2. Citizen Reporter April 26, 2015 at 1:27 pm

    Mark Levin Refuted: Keep the Feds in Check with Nullification, not Amendments!

    By Publius Huldah

    https://publiushuldah.wordpress.com/2013/09/15/mark-levin-refuted-keep-the-feds-in-check-with-nullification-not-amendments/

    Reply
  3. Pingback: Pros and Cons of Constitutional Conventions | Nordskog Publishing

  4. Citizen Reporter February 23, 2015 at 4:07 pm

    Con-Con Proponents Pull Out the Big Guns

    http://www.icontact-archive.com/Xij92lifAFOxVVofzxvF2kr9P6qL2IWf?w=4

    Reply
  5. Citizen Reporter January 18, 2015 at 8:57 pm

    What Will Finally Destroy the Constitution
    http://www.paulstramer.net/2015/01/what-will-finally-destroy-constitution.html

    Reply
  6. Citizen Reporter October 15, 2014 at 10:17 pm

    Follow the Money to the Article V Convention

    http://freedomoutpost.com/2014/10/follow-money-article-v-convention/

    Reply
  7. Citizen Reporter October 7, 2014 at 4:25 pm

    Forwarded by Kirk MacKenzie

    I am adamantly opposed to a Con-Con, by whatever name you call it. We are currently under-funded, under-organized, and under-strategized. We would lose big time.

    Yes, I know, some of you argue it would be called only to amend the Constitution, not throw it out. But let history be our instructor. The Philadelphia Convention was likewise allegedly called to amend the Articles of Confederation, not throw it out. But that is exactly what was done. Largely due to the scheming of Alexander Hamilton (Rothschild’s agent), it became a Constitutional Convention. Many delegates turned around and went home as soon as they realized the con. Those that remained formed a new Constitution, a new form of government, and effectively seceded from the Confederation. The con continued with Alexander Hamilton using a fake name to write 2/3rds of The Federalist Papers to guarantee success of the constitutional overthrow.

    Don’t let it happen again.

    Begin forwarded message:

    Reply
  8. Citizen Reporter August 3, 2014 at 12:47 pm

    Kris Anne Hall series on Article V Convention

    http://krisannehall.com/article-v-convention-series-parts-1-5/

    Reply
  9. Citizen Reporter May 28, 2014 at 10:40 pm

    Con-Con Group Pens Another Historically Inaccurate Call for Convention
    http://www.thenewamerican.com/usnews/constitution/item/18358-con-con-org-pens-another-historically-inaccurate-call-for-convention

    Reply
  10. Citizen Reporter April 23, 2014 at 10:01 am

    From Kirk MacKenzie of http://www.DefendRuralAmerica.com

    In my opinion, Mark Levin is our modern day Alexander Hamilton. Hamilton maneuvered behind the scenes to call the Philadelphia Convention allegedly to amend the Articles of Confederation. It became clear on the first day the real intent was to overthrow the Confederation, violating its amendment clause, in favor of a new government structure defined by a new constitution. Hence, the Philadelphia Convention became a constitutional convention. I suspect the same would happen again.

    Attached are things to consider. Thanks to Don H for forwarding this information.
    From: publiushuldah@gmail.com
    To: publiushuldah@gmail.com
    Sent: 4/15/2014 1:36:48 P.M. Eastern Daylight Time
    Subj: Beware of Mark Levin’s Liberty Amendments!

    In this paper, I show how six of Mark Levin’s proposed amendments actually legalize most of the powers the federal government has usurped for the last 100 years, and do the opposite of what he claims.

    These are dangerous times, and you need to be armed with the Truth. Here it is in three papers:

    http://www.renewamerica.com/columns/huldah/140415

    http://www.americanclarion.com/mark-levins-liberty-amendments-legalizing-tyranny-30211

    http://freedomoutpost.com/2014/04/mark-levins-liberty-amendments-legalizing-tyranny/

    Reply
    • Debra Tash April 23, 2014 at 12:07 pm

      Couldn’t disagree more with Citizen Reporter and Mr. MacKenzie. I have read Mr. Levin’s insightful book which delves into the Constitutional Convention and the Framer’s intent when including the States Convention process in Article 5th. It is the last stop to Jackson and we better take it, having left a way the States, which granted the Federal its limited powers, could reign in the beast if it became a bloated tyrant. George Mason, along with many others, that this power be given to the state legislature, a recourse to maintaining our liberty without another revolution. MacKenzie is mistaken when it comes to the Constitutional Convention and what direction the state delegates were given by their legislators. The Articles of Confederation were not workable, and under them the union would have failed. Study history. You may just learn the truth.

      Reply
  11. Citizen Reporter April 15, 2014 at 11:11 pm

    CON-CON – THROWING THE BABY OUT WITH THE BATH WATER
    http://www.newswithviews.com/Kepus/diane105.htm

    Reply
  12. Citizen Reporter April 15, 2014 at 5:14 pm

    Forwarded by Publius Huldah:

    In this paper, I show how six of Mark Levin’s proposed amendments actually legalize most of the powers the federal government has usurped for the last 100 years, and do the opposite of what he claims.

    These are dangerous times, and you need to be armed with the Truth.

    Here it is in three papers:
    http://www.renewamerica.com/columns/huldah/140415

    http://www.americanclarion.com/mark-levins-liberty-amendments-legalizing-tyranny-30211

    http://freedomoutpost.com/2014/04/mark-levins-liberty-amendments-legalizing-tyranny/

    Reply
  13. Citizen Reporter April 8, 2014 at 11:03 pm

    ARTICLE V CONVENTION: A TITANIC IRRELEVANCE
    http://www.newswithviews.com/Vieira/edwin263.htm

    Vieira is probably the leading constitutional attorney

    Reply
  14. Citizen Reporter April 4, 2014 at 7:46 am

    CONSTITUTIONAL CONVENTION 2013 a.k.a
    http://www.sweetliberty.org/issues/concon/concon2012.html

    Reply
  15. Laura March 12, 2014 at 11:04 am

    Excellent article!

    Reply
  16. Greg Muller February 7, 2014 at 6:40 pm

    The Joining of Questionable Characters in The Convention of States

    Read more at http://freedomoutpost.com/2014/02/joining-questionable-characters-convention-states/#z1hvHhevEVXmM6eR.99

    Reply
  17. Greg Muller February 6, 2014 at 6:31 pm

    By Phyllis Schlafly August 27, 2013 12:25 pm
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    Attacks on the U.S. Constitution are coming from all sides. The New York Times opened its op-ed page to several liberal professors of government: One calls our Constitution “imbecilic,” another claims it contains “archaic” and “evil provisions” and a third urges us to “rewrite the Second Amendment.”

    Out of exasperation with the flouting of the Constitution by Barack Obama and his acolytes, and the way Congress is letting them get by with these violations, several conservative authors and pundits are promoting the calling of a national convention to propose amendments to the Constitution. They believe a series of amendments can put our country on a wiser path.

    The authority for such a procedure is Article V of our Constitution, so they are calling their plan of action an Article V convention. However, they are fooling themselves when they suggest that Article V creates a path to bypass Congress with a “convention of states.”

    The only power the states have under Article V is the opportunity to submit an “application” (petition) humbly beseeching Congress to call a convention. Hundreds of such applications have been submitted over the years, with widely different purposes and wording, many applications were later rescinded and some purport to make the application valid for only a particular amendment such as a federal balanced budget or congressional term limits.

    Article V states that Congress “shall” call a convention on the application of two-thirds of state legislatures (34), but how will Congress count valid applications? We don’t know, and so far, Congress has ignored them anyway.

    If Congress ever decides to act, Article V gives Congress exclusive power to issue the “Call” for a convention to propose “amendments” (note the plural). The Call is the governing document which determines all the basic rules such as where and when a convention will be held, who is eligible to be a delegate (will current office-holders be eligible?), how delegates will be apportioned, how expenses will be paid and who will be the chairman.

    Article V also gives Congress the power to determine whether the three-fourths of the states required for ratification of amendments can ratify by the state legislature’s action or by state conventions.

    The most important question to which there is no answer is how will convention delegates be apportioned? Will each state have one vote (no matter how many delegates it sends), which was the rule in the 1787 Philadelphia convention, or will the convention be apportioned according to population (like Congress or the Electoral College)?

    Nothing in Article V gives the states any power to make this fundamental decision. If apportionment is by population, the big states will control the outcome.

    Article V doesn’t give any power to the states to propose constitutional amendments, or to decide which amendments will be considered by the convention. Article V doesn’t give any power to the courts to correct what does or does not happen.

    Now imagine Democratic and Republican conventions meeting in the same hall and trying to agree on constitutional changes. Imagine the gridlock in drafting a constitutional plank by caucuses led by Sarah Palin and Al Sharpton.

    Everything else about how an Article V Convention would function, including its agenda, is anybody’s guess. Advocates of an Article V convention can hope and predict, but they cannot assure us that any of their plans will come true.

    If we follow the model of the 1787 Convention, will the deliberations be secret? Are you kidding? Nothing is secret any more. What are the plans to deal with protesters: the gun-control lobby, the gay lobby, the abortion lobby, the green lobby, plus experienced protestors trained by Obama’s Organizing for Action, at what would surely be the biggest media event of the year, if not of the century.

    There is no proof that the VIPs promoting an Article V convention have any first-hand knowledge of the politics or procedures of a contested national convention. Don’t they realize that the convention will set its own agenda and that states will have no say over which amendments are considered?

    A recent example of how a convention chairman wielding the gavel can manipulate what happens is the way the 2012 Democratic National Convention chairman ruthlessly called the vote wrong when a delegate tried to add a reference to God in the party platform. The chairman got by with declaring the amendment passed even though we all saw on television that the “Noes” won the vote.

    The whole process is a prescription for political chaos, controversy and confrontation. Alas, I don’t see any George Washingtons, James Madisons, Ben Franklins or Alexander Hamiltons around today who could do as good a job as the Founding Fathers, and I’m worried about the men who think they can.

    Phyllis Schlafly is a lawyer, conservative political analyst and author of 20 books. She is the co-author, with George Neumayr, of the New York Times Best-Seller titled “No Higher Power: Obama’s War on Religious Freedom.” She can be contacted by e-mail at phyllis@eagleforum.org. To find out more about Phyllis Schlafly and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Website at http://www.creators.com.

    COPYRIGHT 2013 CREATORS.COM

    Reply
  18. Citizen Reporter February 4, 2014 at 11:07 pm

    Madison Rising featured The Powers’ article on its Article V Forum. Check forum out:

    http://www.scoop.it/t/article5advocate

    Reply
  19. The Ghost of Thomas Jefferson January 3, 2014 at 10:53 pm

    Mark Levin is misguided and naive to be recommending a convention to rewrite the Constitution. First of all, if we’re ignoring the one we already have, what makes him think that a new one will be honored? Next, there is great potential for a major setback. What makes him think that good, moral, constitutionalists will be the delegates? What makes him think that the states, which have seated a law-breaking Progressive Senate will do better appointing convention delegates? And what makes him so sure that the states will appoint delegates instead of Congress doing it?

    Read on wnd today:

    Re: Mark Levin….

    Levin’s latest book, “The Liberty Amendments,” calls for a constitutional convention centered on Article V of the Constitution, with the aim of granting the states more freedom from federal domination.

    However, Michael Lotfi of the Washington Times calls Levin’s proposal misguided, and even dangerous, and proposes nullification as a preferential option.

    “Think about it,” Lotfi writes. “The NSA, NDAA, ObamaCare, Patriot Act, EPA, DOE, every war since the 1940s, federal gun laws, etc. are all unconstitutional. These laws and agencies all fly in the face of the Second, Fourth, Fifth, Sixth, Ninth and Tenth Amendments.”

    He continued: “Americans must ask themselves: Is the Constitution ineffective, or do we have a lawless, disobedient federal government? If the answer is the latter, which it is, then Americans should see little refuge in additional amendments, which the lawless, disobedient feds will simply continue to ignore.”

    http://communities.washingtontimes.com/neighborhood/american-millennial/2013/dec/27/nullification-vs-article-v-constitutional-conventi/

    Reply
  20. Citizen Reporter January 3, 2014 at 9:13 pm

    Mark Levin Wants To Play Russian Roulette With The Constitution

    Read more: http://benswann.com/mark-levin-wants-to-play-russian-roulette-with-the-constitution/#ixzz2pObJyIA7

    Reply
  21. Active Spectator September 14, 2013 at 9:53 pm

    Seen this one? They’ve been lying in wait for years, looking for a chance to do this:

    http://www.bibliotecapleyades.net/sociopolitica/master_file/newstatesconstitution.htm

    Reply
  22. Active Spectator September 14, 2013 at 9:49 pm

    Mark Levin is way off base on ConCon
    http://freedomoutpost.com/2013/09/mark-levin-refuted-keep-feds-check-nullification-amendments/

    Reply
  23. Keith Broaders September 7, 2013 at 10:01 am

    Either form of convention would not have the authority to change anything. The delegates of a Constitutional Convention or an Article V Convention to propose amendments would simply have the power to discuss potential changes in our Constitution. These proposed changes would need to receive the approval of three fourths of the states.

    Reply

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