Don't Mix Up Your Conventions, or You Might Destroy the Country

A recent American Thinker article made a strong case for amending the U.S. Constitution to restore federalism and re-establish constitutional authority.  Unfortunately, the author erred in calling the amendment proposal process a "constitutional convention" (con-con).  There is no active effort to call a con-con.  There is a very active effort for state legislatures to call an Article V Convention of states.  The difference between a con-con and a convention of states is more than semantic.

There is no provision for a con-con in the Constitution.  A con-con starts with a blank sheet of paper to create a wholly new constitution.  Throwing out our current Constitution – easily the most effective constitution in the world for guaranteeing liberty under a representative republic – is a non-starter.  Our Constitution is not broken and should not be replaced.

The founders understood that as the challenges facing the republic changed, tweaks to the Constitution would be necessary to maintain the balance of power among the branches of government and among the federal and state governments and to counter new threats to our liberty.  In Article V of the Constitution, the authors included two methods for proposing amendments.  The 27 amendments ratified to date were proposed by Congress.  The founders, recognizing that a runaway or corrupt Congress would refuse to limit their own power, included a second method of proposing amendments to bypass Congress: a convention for proposing amendments called by two thirds of the state legislatures.

The language used is important because one of the arguments made against a convention of states is the fear of a "runaway convention" proposing repeals to amendments in the Bill of Rights or granting the federal government more authority.  Opponents of an Article V Convention raise legitimate concerns and point to real risks. Those concerns need to be addressed, and the risks need to be mitigated or accepted.

Unlike a con-con, a convention of states for proposing amendments comes from within the Constitution – this is an amendment process the founders envisioned.  The convention can only propose amendments, so legislators build upon what we have today.  Proposed amendments still have to follow the same ratification process.

Of course, the same risk exists today in a running convention called the U.S. Congress.  At any time, Congress can propose an amendment.  Just recently, in 2014, Democrats in the Senate proposed an amendment to effectively repeal much of the freedom of speech protection in the First Amendment.  The "runaway" risk exists with the U.S. Congress every day.

Fortunately, there are several protections in place to protect civil liberties.  An amendment must be ratified by three fourths of the state legislatures – 38 states.  That means any 13 chambers from different states could block an amendment.  The bar for ratification is very high.

A failsafe unique to the convention of states approach lies in the limited application calling for an Article V Convention.  The current application under consideration authorizes proposing only amendments that "impose fiscal restraints on the federal government, to limit the power and jurisdiction of the federal government, and to limit the terms of office of federal officials and members of Congress."

Yet another firewall rests within the authorizations nominating commissioners to the convention.  State legislatures can narrowly define the authority of commissioners so they are restricted to voting on a limited range of amendments.  At any time, a state legislature can also recall its commissioners and replace them.

Other concerns are primarily related to political strategy and effectiveness.  For example, why will the president, Congress, and the courts respect the new amendments if the constitutional crisis was triggered by the myriad of unconstitutional presidential actions, unconstitutional laws passed by Congress, and blatantly dishonest misinterpretations by the judiciary?  There are no guarantees, but decisions like D.C. v. Heller and Citizens United v. FEC offer counter-examples where the political establishment abided by constitutional restraints they opposed.  The most egregious examples of constitutional excesses usually involve tortured interpretations using questionable "terms of art" to achieve a desired outcome.

Proponents, wise to the modern tricks of activist judges, will draft amendments in such a way as to minimize the opportunity for misinterpretation, deliberate or otherwise.  Opponents will further be hampered in redefining the language by the presence of the living authors, deliberation notes, and ratification debates.

Another argument some advance is the limited effectiveness of a convention of states to "fix" the culture of corruption in the federal government.  Proponents of a convention of states do not claim that new amendments will address every failure of government or compel voters to educate themselves.  The amendments represent just one arrow in a quiver of solutions required to restore constitutional governance.  Still, some of the proposed amendments can help.

Texas governor Greg Abbott proposed the Texas Plan to "restore the rule of law."  The Texas Plan includes amendment proposals to prohibit Congress from regulating activity wholly within one state, require a balanced federal budget, prohibit administrative agencies from creating federal law or pre-empting state law, allow a super-majority of state legislatures to nullify Supreme Court decisions and federal laws or regulations, require a Supreme Court super-majority to overturn a democratically enacted law, restore the balance of power between the state and federal governments, and permit state officials to sue federal officials who overstep their authority.

By decentralizing and dispersing power, the Texas Plan limits the ability of corrupt federal politicians and bureaucrats to engage in nefarious or unauthorized activities.  When they do, state legislatures will possess the authority to check their power.

In 2013, Mark Levin (an attorney, former official in the Reagan Justice Department, and radio host) published The Liberty Amendments detailing the constitutional and historical basis for a convention of states.  The book also discusses some potential amendments, including amendments discussed by the founders but never formally offered.  Proposed amendments establish term limits for members of Congress, term limits for Supreme Court justices, super-majority congressional nullification of Supreme Court decisions, returning to selection of senators by state legislatures, restraints on the federal budget process, and requiring Congress to vote on federal regulations.

The Convention of States Project concluded a simulated convention of states at Colonial Williamsburg on September 23, 2016.  The final day of deliberations is available on video with state legislators from all 50 states debating proposed amendments.  Their final report included amendments to narrow the scope of the commerce clause to limit the jurisdiction of the federal government, establish term limits for members of congress, allow for nullification of federal laws by a super-majority of state legislatures, repeal of the income tax, and compel Congress to vote on federal regulations.

All of the proposed amendments are examples of what a convention of states might produce that enjoys broad popular support.  While none of them is a silver bullet or a cure-all for the serious constitutional challenges facing the Republic, many are good ideas that can help restore the proper balance between federal and state authority.

A Congress bent on hoarding power will never consider amendments limiting its control.  That is why an Article V Convention of states is a very good idea, and a con-con is not.

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