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Is it time to take the drastic step of calling a Constitutional Convention?

6 May 2011

Summary:  Drastic times call for drastic measures.  After 2 centuries it may be time for another convention.  Or do we seek an easy alternative to the hard work of making our Constitutional machinery run?

Mrs. Powel of Philadelphia asked Dr. Franklin “What have we got, a republic or a monarchy”  “A republic, if you can keep it” replied the Doctor.
— entry of 18 September 1887 in the Papers of Dr. James McHenry on the Federal Convention of 1887 (McHenry, 1753-1816, signer of the Constitution, third Secretary of War, namesake of Fort McHenry)

This is part one of a series:

(2)  Was the 1787 Constitutional Convention a runaway, in effect a second revolution?
(3)  Could a new Constitutional Convention help reform America?  Is it worth the risk?

Contents

  1. The need for a new Constitutional Convention
  2. Can Congress or the States limit the scope of an Article V Convention?
  3. For more information

(1)  The need for a new Constitutional Convention

Fears grow that our Regime has grown sclerotic, its political machinery grown rusty with age and unable to produce needed reforms.  Hence increasingly frequent calls for a drastic step — a new Constitutional Convention, to launch amendments that Congress can or will not do.   Common proposals include:

  • Limiting the Federal government’s power to tax, to spend, or to regulate.
  • Increasing the power of the States vs. that of the Federal government, such as allowing the States to repeal Federal laws.

Article V of the Constitution provides a solution:

  • 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 either Case, shall be valid to all Intents and Purposes, as part of this Constitution,
  • when ratified by the Legislatures 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 the Congress;
  • Provided that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

(2)  Can Congress or the States limit the scope of an Article V Convention?

While many people would like substantial reforms to the Constitution, few want a drastic reformation — or to risk the transition to a Third Republic.  So advocates of an Article V convention stress that it would have a limited scope for action.

Unfortunately we don’t know how such a Convention would run, or what rules would govern its operation.  Attorneys confidently guess about this unknowable scenario, despite their inability to reliably predict the outcome of this year’s Supreme Court rulings.  The uncertainty of an Article V convention have prevented its use so far.

For an explanation of these uncertainties see “The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process“, James Kenneth Rogers, Harvard Journal of Law and Public Policy, Summer 2007.  Excerpt:

Much of the confusion about Article V comes from its ambiguous language. This ambiguity is the result of compromises at the Philadelphia Convention of 1787 between groups that wanted to exclude the national legislature from participating in the amendment process and groups that wanted to grant the national legislature the sole authority to amend.

… There are two perspectives on this issue: some believe Congress has broad power to limit the scope of a convention and to impose rules and procedures for its operation through the “political question” doctrine; others believe that, based on the original text, meaning, and purpose of Article V, the scope of a convention cannot be limited.

… The original purpose of Article V was to give States the power to circumvent a recalcitrant or corrupt Congress. It thus makes little sense for it to give Congress broad power to control a convention. In light of the text of Article V and its purpose to empower States, States should have the power to limit the scope of a convention and to limit their applicationsʹ validity to only a certain topic.

… Proponents of the view that Congress has broad discretion to control the subjects discussed at, and the procedures used in, a constitutional convention primarily base their arguments on the political question doctrine. The Supreme Court first formulated the political question doctrine, as applied to Article V, in Coleman v. Miller {1939}. Coleman involved a question about the validity of the Kansas legislatureʹs ratification of the Child Labor Amendment.  The Court based its conclusion on the “historic precedent” of the authority Congress exercised in determining the validity of the Statesʹ ratifications of the Fourteenth Amendment.  There was uncertainty regarding the ratification of the Fourteenth Amendment because Ohio and New Jersey first ratified the amendment and then later rescinded their ratification.

I’ll skip the convoluted legal logic that follows, as it is exactly the type of reasoning that a Convention might seek to strip away — returning to the original core of the Constitution.

Many experts come to similar conclusions.  Such as James L. Sundquist (Brookings Institute) in Constitutional Reform and Effective Government (1992; see Amazon).  Excerpt:

Constitutional lawyers dispute whether, if the Congress attempted to limit a convention to a single subject — such as a balanced budget amendment — the limitation would be binding. In the total absence of precedent, no one can be sure. … But if they did elect to broaden their agenda, it is clear that no one outside their body would have authority to prevent their doing so.

(3)  For more information

(a)  Articles about Constitutional conventions:

  1. The ur-source:  The Article V Library — Their goal is to have searchable electronic copies of all original source materials, including all state Article V applications and related documents.
  2. Worth a look!  “Questions & Answers Pertaining to the Constitution“, taken from The Story of the Constitution, Sol Bloom, published by the National Archives and Record Administration, 1937.
  3. “Threatening the Constitution”, Larry Greenley (bio here), The New American (published by the John Birch Society), 6 July 2009 — “A constitutional convention would be an ineffective and risky method for getting the federal government back under control.”   Available for purchase from Amazon.
  4. Who needs a new constitutional convention?“, Gregory A. Hession, The New American (published by the John Birch Society), 7 June 2010 — “Those who wish to redesign America’s political architecture to further centralize power may have their way if we succumb to the calls for an Article V constitutional convention.”

(b)  Posts about our dying Constitution:

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. Congress shows us how our new government works, 14 April 2008
  4. See the last glimmers of the Constitution’s life…, 27 June 2008
  5. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  6. Another step away from our Constitutional system, with applause, 19 September 2008
  7. “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
  8. More about the tottering structure of the American political regime, 17 August 2009
  9. Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
  10. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
  11. Recommended reading about the Constitution, 17 March 2010 — About the invisible “living” Constitution — About the invisible “living” Constitution
  12. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  13. The President’s big stick (domestic): his National Emergency Powers, 12 June 2010
  14. Code red! The Constitution is burning., 5 August 2010
  15. An Appalling Threat to Civil Liberties and Democracy, 8 August 2010
  16. Every day the Constitution dies a little more, 1 September 2010 — About US government assassination programs
  17. What do our Constitution-loving conservatives say about our government’s assassination programs?, 2 September 2010
  18. Cutting down the tree of liberty, 9 September 2010 — Government secrets trump fair trials.
  19. A great philosopher and statesman comments on the Bush-Obama tweaks to the Constitution, 10 October 2010
  20. This week’s news: many stories showing that the Constitution is dead, 8 December 2010
  21. We’re at war, again. Another shovel of dirt on the corpse of the Constitution., 21 March 2011
  22. The Constitution will still work for us, if we’d only use it. About options for responding to our enemies. , 29 March 2011
  23. Can the UN give Obama the authority to send US forces in the Libyan War?, 1 April 2011
  24. Tearing the Constitution is a bipartisan sport!, 4 April 2011
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One Comment leave one →
  1. We can reform America by magic and willpower! permalink
    17 November 2011 3:32 am

    “Has a Harvard Professor Mapped Out the Next Step for Occupy Wall Street?”, Alesh Houdek, The Atlantic, 16 November 2011 — “Lawrence Lessig’s call for state-based activism on behalf of a Constitutional Convention could provide the uprooted movement with a political project for winter.”

    He has no idea what the Convention will do to reform America. Nor why the corruption of American politics will not control the Convention. It’s magic!

    Excerpt:

    It’s only when we arrive at “Strategy 4: The Convention Game” that we see what Lessig has had in mind all along. Article 5 of the United States Constitution describes how the constitution can be amended. Congress proposes amendments, and the states ratify them. This is how all the existing 27 amendments have been passed. But there’s another way — states can ask Congress to call for a constitutional convention. The convention proposes amendments instead of Congress, though they also have to be ratified by the states.

    It sounds a bit like shooting for the moon: we’ll get the states to call for a Constitutional Convention, which will then propose an amendment to the Constitution that’ll transform how congressional elections are financed, and will then be ratified by three-quarters of the states. But it does address three important obstacles to any solution. First, it harnesses the intelligence and creativity of a great many people to a problem that Lessig himself admits he hasn’t quite found the perfect solution to yet. Second, it bypasses the usual means of reform (Congress, presidential elections, etc.) which the lobbyists and other interested parties have learned so well to manipulate. And lastly, such a convention would be free to propose solutions that would otherwise be subject to be striken as unconstitutional by the Supreme Court.

    Like

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