Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
What are the Pros and Cons of a Convention of States?
So, it seems we are toast.
This was Ricochet’s overwhelming verdict. The United States is doomed. I admit I took this a bit badly. (I’d always thought it must just be me. I figured a brisk walk, some sunshine, and a stiff drink would set me right. Apparently not.)
There was, however, one response that got my attention. HVTs suggested something I’d never once considered: Using Article V of the Constitution to call a Convention of States:
…. there is a viable way that can turn our ship of state out of the the shoal waters it’s presently navigating.
Fortunately, the Founders foresaw the possibility (some felt it was a likelihood) that concentrating power in a Federal government ran the risk of it becoming a source of oppression every bit as onerous as George III. They left us with a solution as big as the problem: Article V.
Article V, which spells out how to propose and ratify Constitutional amendments, ensures that the States have the means to amend the Constitution without any interference from Washington’s despotic, out-of-control political class. The solution, then, resides with us.
We have all the Constitutional levers we need. We have to stop snivelling, get engaged, stay engaged and demand our State legislators seek the remedies we need through Article V of the Constitution.
Have a look at the website and tell me what you think. I thought it was an interesting idea.
What do you think: Is it worth a shot?
Published in General
Well, okay, but I was responding to comment #14, which used debt as an example of what would be fixed.
You might be surprised by how often Congress has yielded power. Today, we’re spending about 20.9% of GDP on government. During Reagan’s first term, we never went below 21%. The reason that we’re at the same level is because during some of those years, government took an increasing share, but in some years it took a decreasing share.
When we’ve managed to decrease the government’s share, we’ve done it because politicians have successfully overcome the bureaucrats. If we pass term limits on Congressmen but not bureaucrats, we increase the power of Washingonian bureaucrats. It certainly doesn’t force them to yield anything.
The way to force them to yield is by electing people who make them yield. As above, most of the governors running did precisely that in their own states, and there’s every reason to believe that they can do it in Washington. There’s an outside chance that we could get a supermajority in Congress in 2018, which would allow us to make genuinely radical changes to the power of Washington bureaucrats.
Please someone explain to me why any new amendments would be adhered to any more than the current Constitution.
The problem isn’t the substance of the Constitution; rather, it is the understanding of that substance. The Constitution as conceived was a grant of limited power to the new federal entity. Apart from it no power exists inherently in the national government. The Bill of Rights further fences in the uses of those limited powers.
As actually used the Constitution has become an unlimited grant of power to the national government. The government has become a sea of power dotted by the occasional island created by the Bill of Rights. Rather than government proving it can do something, it just does the thing, and then we must prove in the courts that it can’t. This is backwards.
James, the full quote from Article V:
Again any proposed amendments can be blocked by 14 states.
Side note: not necessarily a supporter of term limits either.
This is a terrible idea. I don’t want my beautiful classical liberal Constitution, with the greatest bill of rights in the world opened for debate.
I don’t want Chuck Schumer to rewrite the First Amendment, I don’t want ethanol mandates written in because of the Iowa Caucus, I don’t want GE’s lobbyists to write in lower taxes for themselves, and I don’t want the whole thing ruined by the terrible ideas of the 21st century.
As Randy Barnett will tell you, the most effective clauses in the Constitution are those that empower one government entity to check another. Using just words to constrain the state doesn’t work very well (judges and bureaucrats find weasel ways around them, as we have seen with the Commerce Clause and General Welfare Clause). “Thou shalt not” clauses have no enforcement teeth.
The Constitution needs more structural checks and balances. More ways to check the executive (right now the only recourse for executive overreach is impeachment or government shutdown). More ways for the states to check the federal government. More ways to check the judiciary.
Examples:
Give Congress the power to require a vote on any executive order or regulation when 1/4 of either House requests it, or it does not take effect. If that existed today, Obama would be virtually powerless.
Give a majority of state legislatures the power to repeal federal laws and regulations.
Give Congress and the states standing to challenge the constitutionality of any law or executive action, and in a speedy manner.
There was nothing structurally stopping Harry Reid from doing this when his party controlled the Senate. A CoS doesn’t make it any more likely (far less so because state legislatures are a more conservative group than the US Senate).
Whoa! States with the power to repeal federal laws and regulations would lead to chaos. You can’t have a republic where states willy-nilly decide which laws they wish to follow. Perhaps a better way would be for states to have some other resourse than the senate for controlling federal laws. ?Something like 2/3 state legislatures to disallow some federal law perhaps.
So every amendments after the first 10 are defacements to your beatiful classical liberal Constitution?
The 13th Amendment- ending slavery?
The 19th Amendment- granting women the vote?
The 16th Amendment- allowing a Federal income tax?
Okay that last one isn’t so great.
And Chuck Schumer, and the rest o Congress, are completely bypassed in a Convention of the States, that’s the whole point.
Yes this is what I meant. Not repeal for individual states, but a majority of states (or 2/3rds or whatever) voting to repeal the law entirely.
You can thank the 17th Amendment for the state emasculating laws being enacted in the first place. Sure, every seat in filled right after election, but that is turning out to be a net negative for the nation.
I got similar concerns. I think this idea could be useful, but it’s no panacea.
Harry Reid never had 2/3 of the Senate, and Mitch McConnell is perhaps the most staunch defender of the First Amendment ever to hold senatorial office. Also, he’d have needed 2/3 of the House, which would also have been impossible, albeit less obviously so.
Right. I was responding to the false claim that we can prospectively limit the scope of a convention, not the accurate claim that ratification is part of the process. I agree that the convention wouldn’t get progressives all the way to the weakening of the Constitution, but was pointing out why it would get them part of the way.
Were it not for random urinalysis I’d ask for some of what you’re smoking.
Do most of those amendments really depart from classical liberalism? Seems to me most of the departures currently in place rely on the idea that the Constitution changes all the time without the intervening amendment process.
I don’t know if you actually believe that Fred is objecting to the 13th Amendment. I certainly don’t see that in Fred’s argument.
Indeed, I feel confident that if there was a manifest and fixable flaw in the Constitution, such as an inability for the Federal government to prohibit slavery, and Fred was aware of that flaw, of its gravity, and of the appeal of the solution, Fred would support sensible efforts to address it.
Indeed, I’ve spoken to Fred in person on this issue, and can assure you that he not only personally disapproves of slavery, but I feel confident that he does not believe that “don’t like slavery? Then don’t own slaves!” would historically have been a sufficient solution to the problem.
Fred: Wrong on many issues, mostly right on Slavery.
If anyone else wants endorsements like this, I’m here all week.
@Billy: Yes, Billy, that’s exactly what I meant. Thank you for interpreting my comments as a condemnation of the 13th Amendment, as I obviously meant it to be, and not as a screed against a Convention of States as described in the OP.
Can you name someone of equivalent stature? It’s not just his personal SCOTUS victory. He’s also been relentless as a legislator. It’s one of the chief reasons that the National Right to Life Committee’s political wing focused on only one politician for most of last cycle, that being McConnell. He’s a strong supporter of religious liberty, too.
Damn you, James! As a libertarian who rejects as immoral the initiation of the use of force, of course I’m in favor of human slavery.
In fact, if there is one thing that I will now and always fight to the death to preserve, it’s chattel slavery.
How dare you presume to speak for me!
This whole idea would need a really good strategy, and a host of really fine statesmen.
Perhaps a few Republican governors would consider giving up any presidential prospects, and making management of this issue the highest aspiration of their political careers.
For one thing, it seems that there would need to be, going into the convention, a solid plan in place for X, whether to . . .
And X is a lot of things:
If there were enough support in the country to rein in federal overreach through a convention of the states, such a convention would probably not be needed in the first place.
Again what progressive amendment would be ratified by the legislatures of the 14 most conservative states in the country? You mentioned Citizens United, but I doubt it, as no Republican lawmaker is going to pass an amendment that takes away the means to match union political funding.
Look at a U.S. map and see if you can count 14 reliably red states. If you can then what I said at the top this thread is true: The worst that can happen is that nothing will happen.
A convention of the states was conceived as a method for addressing new concerns that the founders hadn’t considered. Perhaps we want to change the eligibility requirements for the President, or move the capital, or change the rules of the Congress to account for new technologies. The 17th Amendment is a good example of this -the experience with direct democracy at the state level and the fact that senators basically ran for statewide election anyway, indicated that the old state systems were no longer working the same way, so we changed the Constitution to account for that.
Overwhelmingly what we’re actually discussing is trying to is enforce our policy and ideological views on recalcitrant opponents. That will only be done in the manner of the 13th Amendment. Which is to say, after the war as an unrepentant act of Victor’s Justice.
The idea that a convention would work to head off a conflagration is wrong. At best, it does nothing, at worst it is the precipitating event.
Of course I don’t think that Fred is against the 13th Amendment, but that’s the point. Amendments can be bad or good. Some have been bad but most have been for the betterment ofthe country.
Amendments have been used to address structural flaws in our government many times in the past and so should be used now.
James of England, Devereaux:
If a COS for proposing amendments frightens you, how do you sleep at night knowing Congress can propose amendments any day it’s in session? It takes just 290 Representatives and 67 Senators to propose a Constitutional amendment. Which is the bigger threat to our liberty: what 34 State legislatures must all agree upon or what 357 people on Capitol Hill might agree to?
Harry Reid spent about 10 days last September trying to get a Constitutional amendment passed that would overturn Citizens United. He couldn’t even get it through the Senate, which he controlled.
The reason Reid was unsuccessful and that no one loses sleep about Congress proposing amendments can be stated in one word: ratification. Congressmen have no political interest in affixing their name to proposed amendments that won’t get ratified. It creates enemies and accomplishes nothing.
I’ve no doubt about the sincerity of your concerns. But it amounts to worrying about water damage in the Ball Room of the Titanic. The only Constitutional method to rein in a runaway Federal government is in Article V. The States must exercise their sovereign authority and impose Constitutional amendments that constrain and contain the Federal behemoth. Washington DC will not reform itself.
I submit to you both that believing we can wait for hundreds of Constitutional Conservatives to start serving on Capitol Hill, and more still to serve on the Supreme Court, amounts to a belief in miracles.
I am really not* understanding your position. Are you against amending the Constitution ever again? Or having the states propose amendments.
Can only Congress propose amendments? If so, is the state option a flaw of the Framers?
Did the Framers egregiously err in writing Article V?
I have no problem with constitutional amenents or the amendment process. That in 220+ years there have only been 27 (10 of which came all at once) tells me that it’s difficult enough to protect me. (Mostly.)
My problem is with a convention. This is high school civics: we have precedent here. The last time they called a mandate, the delegates completely ignored ther mandate and rewrote the whole document rather than just suggesting amendments.
If we has a convention, it opens the whole document (including the awesome parts) to be rewritten.
Augustine identified the ideal focus of such a convention: via a more democratic process than 9 almighty judges, overrule unreasonable SCOTUS decisions which misinterpreted the Constitution to grant the national government virtually unlimited authority. Reassert the 10th Amendment. Clarify the 2nd Amendment. And so on.
There will always be opportunities for mischief, stupidity, and simple disagreement even among Republican state representatives. We have argued among ourselves on Ricochet about the exact meanings of each Amendment in the Bill of Rights. Republican voters and politicians are not of one mind on these basic issues.
But greater risk is necessary for greater reward. The Constitution has been undermined over a course of a century or more. It is unremarkable to claim that such an old legal foundation might be in need of repair. The corruption James and Fred fear has already happened.
Since we are basically in trouble because the various governments tend to interpret the constitution or any law for that matter as it wishes. Enforcing it against some entities and ignoring its enforcement for others. Why do you think that a “Convention of States” will not just create more law for the various governments to continue this practice? My problem is not that the Constitution needs correction. My problem is that it is being interpreted incorrectly and not followed as it should. Those parts that are followed seem to be welded like a sword to be used in protection of politically connected cronies against those they perceive as a threat. In my mind every time the government creates law, it is just creating a weapon to be used by the powerful against the little guy / citizens.
Again Fred, not a word is added or changed in the Constitution if a minimum of 14 State Legislatures disapprove.
By my reckoning we have at least 21 “red” states against 15 “blue” states.
That gives the pro-federalist side a firewall of 8, and the progressives only 2.
(EDIT: I am getting my numbers wrong it takes 13 state, not 14, to block an amendment. Sorry and thxs HVTs)