Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

April 1, 2010

The Case Against An Article V Constitutional Convention

by Doug Mataconis

Virginia Delegate James LeMunyon has an article in today’s Wall Street Journal where he makes an argument that I’ve been hearing with disturbing frequency lately:

The remedy is in Article V of the Constitution, which permits a convention to be called for the purpose of proposing constitutional amendments. Any proposed amendment then would have to be ratified by both houses of 38 state legislatures (three-fourths of the states). This entails 76 separate votes in the affirmative by two houses of the 38 state legislatures. (Nebraska, with its unicameral legislature, would be an exception.)

Interest in calling a first-ever Article V convention is growing at the state level. A petition for such a convention passed the Florida Senate last month, to propose amendments requiring a balanced budget and to restrain the growth of the national government. If approved by the House, Florida would be the 20th state with an active call to do so. In the Virginia House of Delegates, I introduced a resolution (H.J. 183) calling for a constitutional convention to restrain the national government as well. Requests by two-thirds or 34 states are required for a convention to be called.

Here’s what Article V says about a Convention:

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

It sounds like a pretty straightforward idea. If Congress is being stubborn about passing Amendments that the people deem necessary, why not call a Convention to go over their heads ?

Well, there’s a very good reason, and former Chief Justice Warren Burger put it bluntly in 1983:

I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the confederation Congress “for the sole and express purpose.”

With George Washington as chairman, they were able to deliberate in total secrecy, with no press coverage and no leaks. A constitutional Convention today would be a free-for-all for special interest groups, television coverage, and press speculation.

Our 1787 Constitution was referred to by several of its authors as a “miracle.” Whatever gain might be hoped for from a new Constitutional Convention could not be worth the risks involved. A new convention could plunge our Nation into constitutional confusion and confrontation at every turn, with no assurance that focus would be on the subjects needing attention.

Burger, of course, was exactly right then and he’s exactly right now.

It’s worth noting, as Burger does, the historical context in which the 1787 Convention came to be:

On January 21, 1786, the Virginia Legislature, following James Madison‘s recommendation, invited all the states to send delegates to Annapolis, Maryland to discuss ways to reduce these interstate conflicts.[1] At what came to be known as the Annapolis Convention, the few state delegates in attendance endorsed a motion that called for all states to meet in Philadelphia in May 1787 to discuss ways to improve the Articles of Confederation in a “Grand Convention.”[1]

Instead of discussing improvement to the Articles of Confederation, though, the delegates quickly moved to the creation of an entirely new system of government that had no resemblance to the then-current national government and, when they were done, instead of complying with the amendment procedure provided for in the Articles, which would have required approval by Congress and unanimous consent of all thirteen state legislatures, they provided for a ratification process that completely bypassed Congress and the states. And they did that because they knew there was no way the new Constitution would have been approved by all thirteen states.

The Articles of Confederation, of course, were a flawed document and it’s unlikely that the United States would have survived as a unified nation for very much longer had they remained in place. So, in some sense, Madison and the others at Philadelphia did the right thing.

But, as Burger says, we were lucky and there’s no reason to believe we’d be similarly lucky as second time.

Regardless of any of the arguments that LeMunyon and the others make about ways to limit the scope of the convention, the experience of 1787 makes it plain that, once called, there is no way to limit the scope of a Constitutional Convention, and no reason to think they we’d end up with an entirely different Constitution when it was over.

We were also lucky in 1787 because of the men who gathered to write the Constitution. The values they shared were values of individual liberty and small government. Does anyone truly believe that we’d be lucky enough to have delegates to a 2013 Convention, say, that were anywhere near the intellectual and moral calibre of Madison, or Mason, or Franklin ? Yea, I didn’t think so.

Finally, Burger’s point about the importance of secrecy in the 1787 proceedings is even more poignant today. In the era of the 365/24/7 news cycle, blogs, Facebook, and Twitter, there wouldn’t be any way to keep these deliberations secret and making them public would just increase the likelihood that the end product would be one big mess.

The Constitution isn’t perfect and there are many things I would change about it, but I am not willing to take the risk of sacrificing the entire structure we’ve built over the past two centuries just for a chance to do it.

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  • statusquobuster

    Rather than fearing an Article V convention, Americans should fear the two-party plutocracy status quo where voting no longer has a chance of producing deep, needed reforms. Also, what should anger patriots is that Congress has refused to obey the Constitution because over 700 applications for a convention from all 50 states more than meets the one and only requirement for a convention. More evidence of how corrupt the political system is. What Congress fears is exactly what Americans need. Learn all the facts at foavc.org.

  • http://thelibertypapers.org/ Brad Warbiany

    statusquobuster,

    We here at TLP are certainly no fans of the two-party plutocracy. But as libertarians, we see significant danger opening a Convention, as the forces dominating the debate are likely to be populist or socialist (social democrat in the Euro sense, I’m sure), and will not properly restrain the powers of government.

    The structure we have today is merely a shadow of what was intended at the founding of America, but even that shadow is likely to be better than what might come out of this convention.

  • John222

    If a Convention were held today, I could see the current bill of rights go right out the window to be replaced with the right to health care, the right to a living wage, the right to a nice house in a good neighborhood etc…

  • Justin Bowen

    and no reason to think they we’d end up with an entirely different Constitution when it was over.

    I’m going to assume that you meant that there would be “no reason to think that we’d not end up with an entirely different constitution when it was over”, because what you wrote doesn’t make sense with the rest of what you wrote.

    The values they shared were values of individual liberty and small government. Does anyone truly believe that we’d be lucky enough to have delegates to a 2013 Convention, say, that were anywhere near the intellectual and moral calibre of Madison, or Mason, or Franklin ? Yea, I didn’t think so.

    Could you perhaps explain what you mean when you say that “the values they shared were values of individual liberty and small government”? In my opinion, the Founders were [almost exclusively] a bunch of wealthy lawyers and merchants who created a powerful central government so that they and their friends could benefit from it to a greater extent than they were benefiting from the US government under the Articles of Confederation (it certainly didn’t do the small farmers, slaves, women, landless white males, immigrants, Indians, and non-Protestant Christians and non-Christians any good). The use of the word “founders” can be applied in the same way to the broader group of politicians of the thirteen states who were responsible for the ratification and implementation of the new government. The Founders, less and more broadly, were just as politically-motivated as the politicians of today are. Was the government that they created better than many that existed at the time? Certainly, but only because it wasn’t designed to deal with many of the issues that the states were already dealing with (like the problem of people not believing in the religion that the politicians wanted them to believe in). If they thought that they could have convinced a majority of the state politicians to vote in favor of a constitution that granted the federal government even more power at even greater expense to the states (or one that completely did away with the state governments altogether), I have little doubt that they would have. For all of their posturing about individual liberty and limited government during the debate about what powers to give the new federal government and about why the Constitution should have been ratified, the Founders (both those directly involved in the Constitution’s creation and those involved in its ratification) certainly showed no compunction over limiting individual liberty, increasing the size and scope of the new government once they had what they wanted, and using the new government as their personal fiefdom. The state governments were as oppressive as ever and the new government started to grow through fear and lies almost from the very beginning.

    The government that they created wasn’t, in my opinion, ever intended to provide for individual liberty while retaining a small government. An honest look at the Constitution as originally-written clearly shows that it was written for commercial reasons. An honest look at the constitutions of many of the states clearly shows that many of the states were not at all interested in individual liberty (go to the Avalon Project and read the original constitutions of the thirteen states and then try to argue that they were designed to promote individual liberty and then try to argue that the US Constitution, as originally-written, was designed to counteract the many oppressive policies of many states).

    Would anything that came out of a modern Constitutional Convention be as good as the constitution that we have now? Well, that depends on whether or not you believe what we have is a good constitution; on whether you believe that the Founders were somewhat-flawed demigods or power-hungry politicians intent on securing for themselves and their friends profits at the expense of the many; on whether you believe that the subsequent history of the US, and thus the world, happened despite the Constitution or because of it. Frankly, the more I learn of that particular time period and of American and world history in general, the more I come to believe that there are some very, to put it lightly, serious flaws in the way that libertarians tend to think about the Founders and the Constitution.

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