Ted Boettner and Michael Leachman: Reject a Reckless Convention
Martinsburg Journal, the State Journal - The U.S. Constitution has served us well for over two centuries, through many periods of great strain and discord. It is appropriate to consider amendments to the Constitution only with deep respect and deliberate care, as has been done over the years. Unfortunately, the West Virginia Legislature is considering adding its support to a much more reckless approach. Read
In our nation's history, when we have amended the Constitution, we have done so only after two-thirds of both houses of Congress have voted in favor of a specific amendment, sent it to the states and three-fourths of them have approved it. That has happened 27 times, most recently in 1992.
A number of interest groups and political figures are pushing hard to sidestep this tried-and-true process, which has protected the Constitution from wholesale changes. The path they would take instead is an untested, much more dangerous method. That is to petition Congress to call a new convention at which delegates would debate and propose amendments for the states to ratify. If two thirds of states agreed, the second constitutional convention in U.S. history would take place.
How this would work in practice is not clear. How would delegates be chosen? What rules would govern their decision-making? Can their deliberations be restricted to certain topics? Who decides what is germane?
The truth is that no one knows for certain how these questions - and many other fundamental issues about the functioning of a convention - would be decided. It is impossible to predict, particularly given today's volatile, deeply divided and strident political environment. There seems little question that a convention held today would be extremely contentious, highly politicized and heavily influenced by special interests. There are no established ground rules.
A number of prominent jurists and legal scholars across the ideological spectrum have warned that this sort of convention could open up the Constitution to radical and harmful changes. The late Justice Antonin Scalia said less than two years ago, "I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?" Just last May, Scalia reiterated the point, calling a convention a "horrible idea."
Former Chief Justice of the United States Warren Burger wrote in 1988, "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." And one of the country's leading constitutional scholars, Laurence Tribe of Harvard, has said that calling a convention would be "putting the whole Constitution up for grabs." Constitutional scholars associated with the Heritage Foundation and the CATO Institute also have warned against a convention.
Some proponents of a convention claim to know for certain how a convention would operate. For example, they argue that a convention could consider only what individual states call for it to consider. But, as the warnings from prominent jurists and scholars mentioned earlier shows, not everyone agrees with the proponents' reading of the historical and legal record.
Keep in mind that the only constitutional convention in U.S. history, in 1787, went far beyond its mandate and it ignored the ratification process under which it was established and created a new process, lowering the number of states needed to approve the new Constitution and removing Congress from the approval process.
Given these facts, it would be unwise to assume that ratification of the convention's proposals would necessarily require the approval of 38 states, as the Constitution specifies. For example, a convention might remove the states from the approval process entirely and propose a national referendum instead. Or it could follow the example of 1787 and lower the required fraction of the states needed to approve its proposals from three-quarters to two-thirds.
It is also highly likely that a convention held today would be a media circus and a lightning rod for powerful interest groups of various sorts. The pressure on delegates would be immense, and intense negotiations and horse-trading among delegates would be likely. States that did not sign on to a convention call would nevertheless demand a voice, and a vote, perhaps based on the size of their populations.
Many of us are angry and frustrated today, but we should be careful that our anger and frustration not cause us to take steps that permanently damage the country and diminish its promise. The process we have used for amending the Constitution has served us well, protecting the country's founding document through times much more difficult than today. Let us have the fortitude and prudence of previous generations, and avoid placing the Constitution at grave risk.