Friday, February 11, 2011

To Con-Con or Not

American-ConstitutionOf 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 as determined by Congress). 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:  It is unclear on whether a convention can be called and restricted to a single amendment. Opinions have been written by legal scholars supporting both sides of the question.

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

  • How many delegates will attend the convention and what will be the selection process. To my understanding the number of delegates and the process used to select them will be determined by Congress.

  • Do we think that the delegates 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. In my view delegates will generally be the best connected not necessarily the most qualified.

  • How long may a proposed amendment circulate before it can no longer be ratified?
    Answer: There is no time limit unless it is included in the amendment. The 27th amendment was ratified over 202 years after being proposed. Why would I be concerned about this. Let’s suppose that a during a convention in order to get one amendment passed in convention a compromise must occur to pass a second amendment. Now those accepting the compromise do so because they believe there is no way the second amendment would get ratified by the states today. That may very well be true today but how many laws are in place today that no one would have believed possible 20 years ago? This is likely my biggest concern relative to an Article 5 convention.

  • Will they be able to craft amendments to solve problems that don’t have unintended consequences? Take for example the 14th amendment. It’s primary purpose was to ensure that former slaves were citizens. However, it is now interpreted to mean that anyone born in the US, no matter the circumstances, are citizens. Or let’s look at the 17th, which sought to circumvent corruption within state legislatures by having US senators elected by the people rather than state legislations.  It ended up diminishing the power of the states. It also 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

  • If the high expectations are not met will more people then feel like more drastic measures are needed to fix the problems of our nation?
    My answer: Yes

  • 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 change the ratification process.

James Madison 1James Madison wrote this cautionary note in November of 1788 regarding a convention for the purpose of revising the Constitution. Note, he was specifically referring to an Article 5 convention: 

"With respect to the first class, the only question is which of the two modes provided be most eligible for the discussion and adoption of them. The objections agst. a Convention which give a preference to the other mode in my judgment are the following. … 3. If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the Congress appointed to administer and support as well as to amend the system; it would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partizans on both sides; it wd. probably consist of the most heterogeneous characters; would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. Under all these circumstances it seems scarcely to be presumeable that the deliberations of the body could be conducted in harmony, or terminate in the general good. Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America and under all the disadvantages I have mentioned.”
—James Madison, “Letter To George Lee Turberville”, 2-Nov-1788

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. Hamilton, Madison, and Jefferson all made cases for this remedy.

There is an argument to be made that the states calling an Article 5 convention represents the states banding together to fight the federal government and could force congress to act. As mentioned if a convention where to be held my preference would be to repeal the 16th and 17th amendments and perhaps rewrite to 14th so that its original intent was more clearly defined. However, I think the risk of a negative long-term outcome is still significant.

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 already 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.

Other sources of information:


  1. Nullification isn't really a legitimate way to go. In fact, it's not about as legitimate a legal doctrine as horoscopes are predictive of the future.

    We would all be better off if nullification would stay in the 19th century where it died along side the cause it championed: slavery.

  2. Are you saying that the of states which have passed legislation to block the enforcement of components of Obamacare did something that wasn't effective. I think a Florida judge who said those measures gave the states standing would disagree. What about the states which enacted legislature to opposed the REAL ID Act of 2005 and effectively blocked the enforcement of it. I would be interested to know why you don't think it would be an effective tool for the states to fight congressional acts which are not Constitutional.

  3. Lawafterthebar you obviously have issues with the Nullification concept. I'd genuinely love to know what those are so that I can be more informed. I might not agree with you in the end but it is possible I would change my point of view.


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