Who's Afraid of a Runaway Convention?
There are some great ideas floating around for constitutional amendments: for example, a line-item veto, a federalism amendment, and a "repeal amendment" (allowing states to repeal federal legislation) that I'm partial to.
The only realistic chance of achieving any of these things is to have two-thirds of the state legislatures call for a convention to amend the Constitution - as Article V of the Constitution allows. The only other method requires getting two-thirds of both houses of Congress to agree -- not likely. Over at the American Spectator, Philip Klein has a thoughtful piece asking, why are so many people afraid of calling a convention. Smart people, both right and left, get very nervous about an amending convention -- the common theme seems to be fear of a "runaway convention" that ends up proposing all sorts of crazy things.
As Klein demonstrates, the "runaway convention" fear is probably fanciful, since anything proposed by a convention would still have to be approved by three-fourths of the state legislatures, and would be subjecty to judicial review. But the best response comes from Professor Randy Barnett:
"We now have a runaway Congress," he said. "What's worse, a convention that can be checked in numerous ways -- not just one way, but many ways -- or the runaway Congress we now have? We have a clear and present danger of the runaway Congress."
So, come on, is anybody really afraid of a runaway convention?
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Comments:
Jul '10
Re: Who's Afraid of a Runaway Convention?
I think an "amending convention" would result in the people demanding the disassembling of the federal government. If You want to call it "runaway" or "proposing all sorts of crazy things" is subjective.
Jul '10
Re: Who's Afraid of a Runaway Convention?
Nope. Not scared at all. To be scared of using consitutionally provided means to change the constitution is actually disrespectful of the entire system.
That said, most of our problems are not a result of an inadequate constitution. They are a result of lacking the political nerve to hold our elected officials and judges accountable for their abuses. We need to learn to do that first. If we don;t we are just fooling ourselves.
May '10
Re: Who's Afraid of a Runaway Convention?
Not scared; think it's long over due.
Which, in turn, is the result of a populace that heretofore has not been paying attention. It may, in fact be true that Obama turns out to be the best thing that could happen to America; the final blow that bestirred the sleeping giant that is the American public.
Re: Who's Afraid of a Runaway Convention?
Adam, I worry more about the attendees than the convention per se. I just don't see a surfeit of statesmen out there. Can you think of any modern politicians who compare favorably to the Framers? If we wind up with standard-issue modern politicians, I fear the amending convention's Barney Frank cutting a deal--with a Linsey Graham?--securing passage of a leftist Second Bill of Rights along with a smattering of conservative measures. The "bipartisan" argument will be to let the states sort out which amendments to approve, putting explicit "positive rights" in play. Then we wind up with the mother of all multi-year political battles as Soros et al. fund state-by-state Alinskyite attacks on Second Bill of Rights opponents as anti-poor, anti-minority, anti-gay . . . you name it.
The Framers' Constitution is a singular accomplishment. I'd rather fiddle with it one amendment at a time.
Edited on October 14, 2010 at 4:55amMay '10
Re: Who's Afraid of a Runaway Convention?
A second Constitutional Convention is the only practical way to enact a balanced budget amendment in the form I propose: one that stipulates that any member of Congress that votes in favor of a spending bill that pushes the Federal Government into the red for a given year is ineligible to stand for reelection.
The wonderful thing about this kind of restriction on spending is its flexibility. If we ever face the kind of emergency where a deficit is truly necessary, our congressmen--who are unquestionably patriots, every one of them--can and will do the selfless thing and sacrifice their careers for the good of the country. We ask our young men to risk death on the battlefield; why can't our congressmen likewise sacrifice for their country, in this one small way?
Jul '10
Re: Who's Afraid of a Runaway Convention?
Fredosphere, with two dots over Yer o, I love it. Let's spread the word.
Jul '10
Re: Who's Afraid of a Runaway Convention?
I'm with George.
As the saying goes, personnel is policy, so the first hazard lies in who is selected to attend the convention. I'm literally stricken with revulsion by the very idea of Nancy Pelosi's bony fingers sorting through the tasty bits of the Constitution or Patrick Leahy preening as he imagines himself a modern-day Benjamin Franklin.
On the other hand, the follow-on, as the amendments are debated among the several states, might be so explosive the entire federation blows apart, which, at times, I think is an eventuality much to be hoped for.
Jul '10
Re: Who's Afraid of a Runaway Convention?
I have seen nothing in the comportment of the American political class since the Constitutional Convention to convince me that any good would come of a second one.
I would be happy if we would use the one we have responsibly, and the people would resume their Madisonian responsibility for enforcing it, John Marshall be damned for the grasping [ed.: expletive deleted] he was.
Edited on March 25, 2011 at 6:42amMay '10
Re: Who's Afraid of a Runaway Convention?
No, because the convention will never happen in the first place.
Jun '10
Re: Who's Afraid of a Runaway Convention?
The Founders were deists not deities. They could not and did not anticipate that any Article Three judge could assert the power to enjoin President Washington in determining, pursuant to act of Congress, the conditions of service in the Continental Army. (argument is about judicial over-reach, not the wisdom of DADT) They didn't foresee that we would convene a nine-member constitutional convention each October and that the commerce clause would negate the Tenth Amendment. Abhorring monarchy (OK, Adams was a squish), they expected Congress to be the center of government, but not the K-Street Congress passing 2000 page bills that generate 200,000 pages of regulations within the imperial executive. As Klein's piece states, the convention can be called to specific issues and there are a number of brakes to stop a run-away. Dr Savage (and Kenneth) make a strong case, but I wonder how two additional Obama appointments on the SC would affect their view, especially if one of those appointments was to replace Justice Kennedy or one of the four reliable originalist votes.
Aug '10
Re: Who's Afraid of a Runaway Convention?
Bleagh. Thanks for the imagery. Now I'm stricken, too.
I'm a bit more optimistic, though. Not because of judicial review, but because of the "subject to approval by 3/4 of the state legislatures" bit. State legislators are smaller fish than the ones in Washington, easier to scare into doing what's right -- or so I hope. And so I think anyone who believed in Federalism would hope.
Then again, my optimism might be more like other people's pessimism. So my optimism might not mean much.
Aug '10
Re: Who's Afraid of a Runaway Convention?
Kenneth - a terrifying image. You should write screenplays for horror films.
Re: Who's Afraid of a Runaway Convention?
I also find Kenneth's ghoulish images terrifying -- and just in time for Halloween! -- but I maintain that Professor Barnett's argument is unanswerable: we have a runaway Congress right now! Pelosi, et al, are already busy amending the Constitution. They're pretending that they're not, but they are. When the political class embraces the "Living Constitution" as they have, then every day is a constitutional convention. For all sorts of reasons, we can't rely on the Supreme Court, eg, they defer to Congress and administrative agencies whenever possible; they have an institutional bias toward incremental, not sweeping change, and besides, I'd rather not have the future of the republic depend on which side of the bed Justice Kennedy woke up on.
As Klein points out, an amending convention would have to be called for the purpose of framing specific amendments; it's just not realistic to expect Congress to accept an application from the states to consider unspecified and unlimited amendments. The states would have to frame their application with specificity. And then they'd have to get 3/4 of the state legislatures to accept any amendments. I think the risk is low.
May '10
Re: Who's Afraid of a Runaway Convention?
I'd be very pleased to see a convention, but as George points out, we lack the visionaries. My fear is not so much a "runaway" convention but a chaotic mess that produces something that either cannot or should not be approved.
To do this right would require vision, remarkable restraint and the public stature to get an angry and contentious public to go along. Are we ready for that?
Edited on October 14, 2010 at 8:27pmJun '10
Re: Who's Afraid of a Runaway Convention?
A call for a convention that the states could probably approve (and that Congress never would) is the fiscal area. Unfunded mandates and money making the round trip from the states (people) to DC and then back, much reduced, and laden with restrictions and regulations, is a near-universal complaint. A balanced budget requirement at the federal level and a line-item veto would be included in this as well. The 16th Amendment should be modified to restrict the use of income taxes to stated purposes e.g. common defense, but not "general welfare." This would require the federal government to function only on excise taxes (which could include a V.A.T.)
Sep '10
Re: Who's Afraid of a Runaway Convention?
I agree that this seems to be the only way at this time we have a chance of getting any amendments to the states for ratification. The amendments we need, however, are not new ideas like a balanced budget amendment (which would be enforced how, BTW? Are we going to rely on the courts to do accounting? Relying on the courts to check congress like that would be quite contrary to the Founders' design and IMHO unworkable in practice), but instead those that would move us back close to the Founders original design. And not all of the reforms even need to be amendments!
I submit the following for your consideration:
1) Repeal Amendment 16
2) Repeal Amendment 17
3) Repeal all Campaign Finance "Reform": "Congress shall make NO law..." means NO LAW.
4) Expand the size of the House to 1 Rep / 30,000 residents, as it was for the first hundred years of the Republic before the cap was imposed.
I'll admit, though, that item 4 may well take an amendment as it seems unlikely that the House would ever vote to dilute the power of current members.
Edited on October 15, 2010 at 12:03amSep '10
Re: Who's Afraid of a Runaway Convention?
Why do we need the income tax at all with a VAT? A VAT is much more economically efficient as it doesn't punish savings and capital formation. If we had nothing but say a 10% VAT (divided between some for the states and say 6% for the federal government, because anything higher than this rapidly causes a black market to emerge) our economy would grow MUCH more rapidly than it does today.
Jun '10
Re: Who's Afraid of a Runaway Convention?
Demaratus
Why do we need the income tax at all with a VAT? A VAT is much more economically efficient as it doesn't punish savings and capital formation. If we had nothing but say a 10% VAT (divided between some for the states and say 6% for the federal government, because anything higher than this rapidly causes a black market to emerge) our economy would grow MUCH more rapidly than it does today. · Oct 14 at 1:02pm
I don't disagree, Demaratus. I was thinking of the need to rapidly raise additional revenue in war might require an income tax. Agree 100% on VAT. Also, I like excise taxes (gas=roads, alcohol/tobacco=indigent care, etc)