To Con-Con or Not

Of late in Utah there has been a bit of news surrounding a legislative initiative to recommend that the state request the holding of a constitutional convention as outlined in Article V of the US Constitution. There are two ways to propose amendments to the Constitution which must be ratified by 3/4s of the states (either by their legislatures or by their own conventions). The first is when 2/3rds “of both Houses of shall deem it necessary” and the second is when 2/3rds of the legislators of the states call a convention for proposing amendments. I’ve sent a couple of e-mails on this to my state rep and made several comments to a post by Holly on the Hill. Below is a summary of my thoughts on a convention.

It sounds good, right? Simply call for a convention, hold it, propose amendments to fix all the problems and then be done with it. Well, not so fast. Let me list a few questions we can ask ourselves:

• At a Constitutional Convention is there any limit to the number of amendments that can be proposed?
  Answer:  No

• Is there a limit to the scope of these amendments?
  Answer: No

• Do we think that the attendees representing the states will be anywhere near as qualified to discuss constitutional issues, theories of government … as the attendees of the original convention.
  My answer: Not likely!

• Who will end up attending the convention? The most qualified or the best connected?
  My answer: The least qualified and best connected. The number and process for selecting delegates is determined by Congress. If we are not happy with them why would we think we would be happy with the delegates selected by a process of their choosing.

• Will they be able to craft amendments to solve problems that don’t have unintended consequences. Vis-a-vi the 14th amendment which among other things wanted to ensure that slaves were citizen being interpreted to mean that anyone born in the US no matter the circumstances are citizens. Or the 17th which allegedly sought to circumvent corruption within state legislatures and ended up diminishing the power of the states and made it easier to corrupt the Senate – no longer do the legislatures of each state need to be compromised, now only a single individual, the senator does.
  My answer: The same as my chances of winning the lottery.

• Will expectations be raised in the public’s mind to the point that they are impossible to meet?
  My answer: Yes

• When they are not met will more people then feel like there are no alternatives to drastic measures?
  My answer: Yes

• Who will bear the cost of such a convention? I can only imagine the expense.
  Answer: We will and the cost will be significant

• What amendments would you propose?
  Personally I would repeal and rewrite the 14th so that it could not be interpreted that children of non-citizen born in the US are citizens. I would also repeal the 16th and 17th. And perhaps add balanced budget amendment.

• What happens next?
  Answer: 3/4s of the States need to approve any proposed amendments. Unless like the original and only Constitution Convention the delegates changes the ratification process.

I don’t think the core problem lies with the Constitution. Rather it lies with the acceptance on everyone’s part (the public, the congress, the judiciary) with existing statutes and practices that are in reality extra-constitutional. I don’t think that gets fixed with a con-con. Really, how much clearer does it need to be than what the 10th amendment states.

“All powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

We are not abiding by that now. Why do we think that we would abide by any amendment no matter how succinct and well crafted? Better to figure out how the states can band together to assert their existing rights today. A con-con from my perspective has a much better chance of making things worse than improving them.  Moreover, if the root problem does not lie within the Constitution why would anyone seek, as a remedy, to change it.

A better solution is for the States to band together to fight a federal government that long ago exceeded the bounds placed on it by the Constitution. A good book on the subject is “Nullification: How to Resist Federal Tyranny in the 21st Century” by Thomas E Woods, Jr. An example of an effort by a state is HR0076, authored by Utah State Rep Ken Ivory and passed in the 2011 legislative session (see also Ken’s Where’s the Line website).   Hamilton, Madison, and Jefferson all made cases for this remedy.

Some people may say that we shouldn’t refrain from calling for a conference simply because we are afraid. To that I would ask, “Is it cowardice to advocate for not doing something that will most likely exacerbate the current problem?” Those who oppose a con-con think it would not be an effective means to fix a federal government that is out of control and operating in an extra-constitutional fashion. To spend time and effort on a con-con is to re-enact the Charge of the Light Brigade. While the motives may have been laudable and the men brave, the resultant waste of lives was inexcusable. In this case no lives will be lost but time and resources will have been expended needlessly on an effort that will yield no positive results. Better to use these resources on efforts which have a more likely chance of success such as Rep. Ken Ivory’s initiative.

Other sources of information:

• The Eagle Forum has page on its website devoted to the topic
• The Heritage Foundation Published an article on Article V Conventions.
• Holly Richardson posted an article on her blog “Holly on the Hill” that has a number of interesting comments (over 50).
• For an interesting discussion on the danger of a convention please view the following:

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Discussion on the dangers of an Article V Convention