Constitutional Convention of States Still a Dangerous Idea
This afternoon the West Virginia Senate approved Senate Concurrent Resolution (SCR) 10, a resolution calling for a convention of states to amend the U.S. Constitution. Under Article 5 of the U.S. Constitution, upon application of two-thirds of the states, Congress must convene a convention to amend the Constitution. While the U.S. Constitution has been amended 27 times, there has never been a convention of states to propose amendments (unless you count the original one in 1787 that went well beyond its mandate). Similar to constitutional amendments originated in Congress, it would take 38 states to ratify any amendments from a convention of states.
As we pointed out last year, this is a potentially dangerous proposal that could create more turmoil in the country and could jeopardize many of our most cherished freedoms and rights. While SCR 10 implies that states can and should limit the agenda of a convention to a "Single Issue," it then proposes three separate (not to mention extremely vague) topics for proposed amendments, including (1) "fiscal restraints on the federal government", (2) limiting the "power and jurisdiction of the federal government," and (3) limiting the "terms of office for its officials and for members of Congress."
Pushing aside the merits of the proposed amendments in SCR 10, there is a broad legal consensus that it would be difficult to limit or control a convention of states even if states specify it is only for single purpose. As the Center on Budget and Policy Priorities highlights in a recent report:
A number of prominent legal experts have warned that states cannot control a constitutional convention or that calling one could open up the Constitution to significant and unpredictable changes. For instance:
"I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?"a
Former Supreme Court Justice Antonin Scalia
"here is no way to effectively 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 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."b
Former Supreme Court Chief Justice Warren Burger
"There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights."c
Former Supreme Court Justice Arthur Goldberg
"First of all, we have developed orderly procedures over the past couple of centuries for resolving ambiguities , but no comparable procedures for resolving . Second, difficult interpretive questions about the Bill of Rights or the scope of the taxing power or the commerce power tend to arise one at a time, while questions surrounding the convention process would more or less need to be resolved all at once. And third, the stakes in this case in this instance are vastly greater, because what you're doing is putting the whole Constitution up for grabs."d
Professor Laurence Tribe, Harvard Law School
"tate legislators do not have the right to dictate the terms of constitutional debate. On the contrary, they may be eliminated entirely if Congress decides that state conventions would be more appropriate vehicles for ratification. The states have the last say on amendments, but the Constitution permits them to consider only those proposals that emerge from a national institution free to consider all possible responses to an alleged constitutional deficiency. . . Nobody thinks we are now in the midst of constitutional crisis. Why, then, should we put the work of the first convention in jeopardy?"e
Professor Bruce Ackerman, Yale Law School
These thoughts where echoed in a recent editorial against a constitutional convention of states from USA Today saying "it would be impossible to control."
More recently, the conservative Heritage Foundation said:
...there is little doubt that some states and scholars have been reluctant to propose an Article V convention, both because of the fear of a "runaway convention" in which the delegates deviate from the purposes for which the convention was sought by the requisite number of state legislatures and propose alternative, perhaps ill-advised amendments relating to other issues or because of the fear that the legal uncertainties surrounding any convention of the states would likely result in a series of time-consuming, lengthy lawsuits that could result in the entire endeavor being undone."serve to diminish the liberties of the American people, or of some of the people."
Other conservatives also believe that a convention of states would be a terrible move, including Jennifer Rubin with the Washington Post. Rubin says:
I sincerely doubt that a convention would limit the power of government. In theory, for example, people favor a balanced budget, but in reality, they soon would learn about all the cuts in store for them. Then they'd turn to expanding government to cater to passing fancies. Even if I am wrong, the risk alone is too great to encourage a massive constitutional rewrite. Once passed, a constitutional amendment is so difficult to repeal that it has been done only once.
Here is conservative David Davenport with the conservative Hoover Institution writing in Forbes Magazine:
It's disappointing, however, when conservatives, who should be respectful of the Constitution and willing to do the hard, long political work of protecting it, instead offer the false hope of instant gratification by foolishly proposing a modern constitutional convention.
Here is conservative David Limbaugh (Rush Limbaugh's younger brother) at Newsmax:
I understand the frustration conservatives feel about the federal government's virtually unchecked growth over the past 75 years and how this is destroying our liberties and bankrupting our nation. But the Constitution isn't the problem. Rewriting it isn't the solution.Proponents of a constitutional convention might protest that their goals are far more modest than a new Constitution. Well, so were the framers' plans when they met in Philadelphia to amend the Articles of Confederation.
There has also been conservative opposition from Larry Greenley in The New American, A. Barton Hinkle in Reason Magazine, Gary Demar in Godfather Politics and from the National Association of Gun Rights.
The biggest difference between SCR 10 and what the State Senate passed last year with SCR 13 is its scope. In 2015, SCR 13 was squarely focused on calling a convention to propose a BBA or balance budget amendment (which could wreak our economy, to say the least) and it did not pass the House. According to some estimates, only seven more states need to pass a BBA Con Con before Congress would call a convention of states. With SCR 10, on the other hand, only five states so far have passed similar resolutions. The burning question is whether the calls for an Article 5 convention need to be identical or similar in breadth and scope in order for Congress to call a convention of states. Unfortunately, it is unclear how Congress would aggregate each of the state's resolutions because many of them call for different proposed amendments.
West Virginia lawmakers in the House would be wise not to follow the action of the Senate today and should reject SCR 10. As Robert Greenstein with the Center on Budget and Policy Priorities carefully noted in the Washington Post:
Our country faces enough problems and division. We don't need to add to them and inflame an already toxic political environment by placing at risk the constitutional structure that has served us well for more than two centuries — and heading into dangerous, unknown territory by convening a convention to rework the Constitution.