How About a Constitutional Convention? How About No
Posted on October 10, 2018 Categories Law, Politics
We've never held a convention of the states to propose a constitutional amendment, and maybe it should stay that way for the foreseeable future. (Image Credit: Howard Chandler Christy)
When it comes to the idea of a constitutional convention, it's important to know who is doing the asking, why they are asking, and what the risks are should such a proposal come to pass.
As economist/political activist Robert Reich would have it, a "rogue" constitutional convention is "the biggest threat to our democracy that you haven't heard of." Full stop. First, as a primer, Reich explains that there are two ways to amend the Constitution:
There are 2 ways to amend the United States Constitution: One way – the way we've passed every amendment since the Bill of Rights – is for two-thirds of the House and two-thirds of the Senate to vote for a proposed amendment, and then have it ratified by at least three quarters of the states – now 38 in number.
But there's a second way to amend the Constitution. Two thirds of the states may demand that Congress form a constitutional convention to propose amendments.
Why is Reich so disturbed by a convention that ostensibly is formed democratically by means of a two-thirds majority? The problem, as he tells it, is that once such a convention is convened, "there are no rules to limit or constrain what comes next." In theory, delegates could change the ratification process at the convention, lowering the 38-state bar for approval of new amendments. From there, Reich warns, an Article V convention could "allow delegates to write their own agenda into our Constitution."
And what might such an agenda look like? Like Reich, Charles P. Pierce, writing for Esquire, invokes the Koch Brothers as a point of immediate concern to discerning Americans on the left of, at, or near the center of the political spectrum.
The Koch Brothers have been bankrolling a pro-convention movement called the Convention of the States Project based on imposing fiscal restraints on the federal government as well as term limits on officials and members of Congress, not to mention limiting the very power and jurisdiction of the federal government. Disguised as convening for the purpose of proposing a balanced budget amendment, as Pierce explains, the convention would be a means of leveraging the language of the Tenth Amendment to significantly weaken the power of the government to regulate private enterprise. He paints a doom-and-gloom picture of what's stake here:
Disunion would be triumphant. The final victory of movement conservatism would be a return to Gilded Age economics tied to a rebooted Confederate States of America.
Mr. Madison saw it coming. All of it. The mercantile power arrayed against political democracy. Politicians who become servants of the money power and not the people who elected them, and opportunists who would take advantage of these conflicts for their own benefits.
As Pierce, channeling James Madison, espouses, this intentional division is like an illness that could prove fatal if there is no intervention to treat it. Consider the cockles of my heart duly unwarmed.
Going back to Robert Reich's sense of dread, what starts with an "innocent" balanced budget amendment—which he describes as "crazy" and Pierce describes as "The Worst Idea in American Politics"—could open the floodgates to a wave of additional regressive reforms, including restricting abortion rights, eliminating First Amendment protections for freedom of the press and freedom of speech, standing in the way of marriage equality for members of the LGBTQIA+ community, and eating away at the very checks and balances designed in our nation's formative years. It wouldn't only set us back, but noting the big money of the Kochs et al. behind this particular movement, it's patently undemocratic.
It should be pointed out that conservatives aren't the only ones calling for a constitutional convention; one group, Wolf PAC, supports an Article V convention as a means of aiming to institute campaign finance reform. Critics of circumventing the "standard" approach to effecting constitutional change, from whichever direction you approach a constitutional convention, though, see this process as an exercise in recklessness.
One such critic, David A. Super, professor of law at Georgetown Law, pans not only calls for an Article V convention, but theoretical constraints offered by the Convention of the States Project for states to undertake in the event their delegates go rogue. In a piece for The Hill published back in March, Super spelled out three big reasons why calls for these laws amount to little more than a "sham."
For one, the Constitution says nothing that would give the states power to control its delegates "any more than state legislatures can control their states' Members of Congress." These delegates would, in effect, become federal officials who get their authority from Article V. Second, state courts would have no jurisdiction to meddle in a constitutional convention, and Congress would possess no ability to oust delegates either. Additionally, the timetable for ratification of laws to restrict delegates would likely be too short to have meaning given that delegates to the convention could finish their business and vote before anything is passed.
The prevailing sentiment of Pierce, Reich, Super, and others thus appears to be that the United States, divided enough as it is given the current political climate, doesn't need to encourage any additional disunion. Especially not when, as some tallies have suggested, there are 28 states of the necessary 34 willing to convene an Article V convention.
Noting our closeness to the two-thirds target majority—however accurate it may be—their tone is one of urgency, and one that has the mindset of statehouses at heart. Super warns state legislatures not to "delude themselves that the dangers of an Article V convention can somehow be contained." Reich appeals to his readers' sense of activism and justice in instructing them to "tell their state lawmakers to reject calls for an Article V convention." Pierce speaks only in ominous terms, but we get his drift. These professionals/experts caution strongly against plunging America into uncharted waters when the ship already may be leaking as it is.
As expressed in the opening paragraph of this piece and to be underscored once more, when it comes to a proposal like a constitutional convention, it's important to know who is doing the asking and why they are asking. If you follow The Hill, you may have more recently seen this piece by Lindsey Stroud espousing the belief that this Constitution Day (which was Sept. 17), states should "finally unwrap the gift of Article V." In the piece, Stroud points to our "mind-boggling" national debt, "unfounded" fears of a runaway convention, and holding a "tyrannical" federal government accountable.
What you don't know unless you read the fine print is that Stroud is affiliated with the Heartland Institute, characterized on the namesake Wikipedia page as "an American conservative and libertarian public policy think tank." This same Heartland Institute, in its advocacy for free-market policies, argues against the very existence climate change, questions the links between smoking and cancer, pushes for the privatization of public resources including those of public schools, and opposes an expanded federal role in health care. I'm not saying the views Stroud puts forth are necessarily wrong because of this agenda. Still, you've heard what other "experts" have to say and if the stance of a pro-tobacco, anti-environmental think tank doesn't give you pause, you might need to question your own judgment.
What makes the prospects of an Article V constitutional convention so alluring is disillusionment on both sides of the political aisle with respect to various institutions. Especially if you're a leftist, you're probably thinking the current President sucks, Congress is feckless, and the Supreme Court has been compromised with the addition of not one but two illegitimate picks in Neil Gorsuch and Brett Kavanaugh. Particularly Kavanaugh. On top of this, there's all this money—so-called "dark money" or otherwise—being regularly infused into political campaigns and lobbying. Cue the (deserved) mentions about Citizens United. These elements of the American political system not only seem broken but far from being fixed and maybe even on the path to ruin. Why not try an end-around to institute meaningful reform?
Then again, the road to Hell is paved with good intentions, and the Devil is in the detail. I'm mixing my metaphors a bit, but the point (other than that there are a lot of sayings involving Hell and the Devil) is that yes, action is needed beyond merely talking about our broken system, but that it's also critically important to go about it the right way.
I would argue that rather than focusing on trying to get a two-thirds majority of states to agree to convene to change the Constitution, we should continue to make efforts to improve voter turnout and eliminate barriers to voting predicated on partisan attempts at voter disenfranchisement. We should also continue to exert pressure on our current lawmakers, encourage political parties to produce better candidates, and run for office if we're not satisfied with what party leaders come up with. Sure, we can consider incorporating the language of some of these constitutional convention resolutions in state law proposals. But encouraging an unfamiliar process as anything more than a last-ditch effort seems imprudent. Despite our frustration and the notion it's going to be a long process, people-powered reform is the way to go.
At the risk of beating a proverbial dead horse (there are also a lot of horse-related sayings), appropriate weight should be afforded questions about who proposes an Article V constitutional convention, why, and what the consequences stand to be. As bad as things are now, they could get worse.
Tagged Article V convention, balanced budget amendment, campaign finance law, Charles P. Pierce, Citizens United, constitutional convention, convention of the states, Convention of the States Project, David A. Super, Heartland Institute, Koch Brothers, Robert Reich, runaway convention, Tenth Amendment, U.S. Constitution, Wolf PAC
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5 thoughts on "How About a Constitutional Convention? How About No"
One thing to keep in mind is that Reich is an economist, not a constitutional scholar. He also advocates against the Constitution at Common Cause's behest. I hold him in high regard and he has taught me a lot about the economy, which is why it hurts a little to say he is wrong in regards to the relative dangers of Article V.
If you are worried about a body of folks more dependant on special interests than the constituents with the power to propose amendments to the constitution, you are in luck because there is a word for that: Congress.
A plain reading in the English language of Article V gives these bodies only one power: to propose amendments. No more, no less. Whether proposed by Congress or a convention, any amendment will have to be ratified by 38 states to become a part of the highest law of the land. This means that only 13 states need one chamber or the other to vote 'no,' on ratification to stop an amendment in its tracks.
Nothing too far right OR left is going to be able to pass a barrier like that.
If you are interested in having a further discussion about the parts of Article V the establishment wants us to forget, I'm happy to help.
Joseph Mangano says:
In the James Kenneth Rogers article referenced on Wolf-PAC's resources page, the author makes this concession, "A possible solution to clarify the Convention Clause power would be for the States to petition for, or for Congress to propose, an amendment to Article V itself. It could be amended to clarify the constitutional convention amendment process so that the purposes of the Convention Clause can be given effect. Such an amendment could explicitly state that Congress cannot limit or control a constitutional convention but that the States may exercise such control, that specific applications can be limited to single issues, and that the resulting convention may only consider those issues. The amendment could also include basic procedures and details for how a convention would operate to ensure its independence from Congress, and it could explicitly answer questions about the funding of a convention, the selection of delegates and a location, and other procedural and logistical questions.
I hear what you're saying about the lack of danger of a runaway convention, esp. on the left-leaning side, but I would prefer that additional stipulations be put in to make the process less subject to exceeding its stated purpose. I also stand by my desire to see better candidates run for office and better voter turnout as part of reforms.
Yes, James Kenneth Rodgers is correct. It's important that you not stop reading the constitution at the end of his statement… _any_ amendment proposed by either Congress of the states would first need to be ratified by 38 states before becoming a part of the Constitution.
Is it possible for Congress to propose amending the constitution to pass proposed amendments with a 25% ratification rate? Sure but good luck finding 38 states willing to ratify such nonsense.
It only takes 13 states to have a single chamber of their legislature vote, "no," to stop any proposal dead in its tracks. Only the most non-partisan and popular proposals have any chance of being ratified.
The states have held conventions over 200 times to amend their own constitutions and not a single one has 'run away. We know how conventions work and we know Congress isn't
Thanks for taking the time to dig into this important topic. =)
Larry Lessig just started Season 2 of his podcast, which deals with a Convention. The first 2 episodes are brief, but more is on the way.
https://tyt.com/listen/2PIajedepWMYO4wEG6e4MK/42Tcx8sFEQ8acQe2oiIKEW/podcasts/4ZdEA7CznOogWKIW0EQe6M
Thanks for the suggestion. I might check it out.