A New Constitutional Convention Is Not the Conservative Option

 

citizenshipday09The other day Peter Robinson asked what I thought of Texas Gov. Greg Abbott’s call for a constitutional convention. (Peter will be interviewing Gov. Abbott for Uncommon Knowledge early next month.)

The conservative in me thinks a constitutional convention is a bad idea because of the inability to limit the convention’s work. We could go in with a Constitution with a separation of powers, federalism, and a Bill of Rights, and emerge with a wholly new framework of government that merges all state power into one government, as in Great Britain or Europe. A convention’s work would still have to gain three-quarters approval of the states under Article V, though the Convention could reject that process too.

Think of where a majority of the nation is right now. Majorities regularly disapprove of the rights in the Bill of Rights, not just those protecting criminal defendants, but also the First and Second Amendments. I don’t see Citizens United and Heller surviving a majoritarian convention. My sense is that a majority of the country probably would do away with federalism (if indeed a majority would still support the welfare state) and much of the separation of powers (judging by Trump’s success, the people would support transferring more power to the President from Congress).

To be sure, Governor Abbott and the supporters of calls for a convention do not seek such a result. Their proposals seek to limit the convention’s subject to limiting the power of the federal government. I support wholly the objectives behind his nine principles (though I think they are too many and that they overlap). Under our Constitution, we had a federal government of limited powers much like the one proposed here, from 1789-1932. I don’t see why we should not use the regular political process, or individual amendments, to make corrections, and to demand change from our politicians.

But once a convention meets, it could propose any amendments it wants or even a completely redesigned Constitution. There is nothing in the text of Article V of the Constitution which permits Congress or the states to restrict the scope of the convention. It only states:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Recall that this was exactly what the delegates to the Philadelphia Convention in 1787 did. The Constitutional Convention was not called to write a new frame of government, but merely to propose amendments to the Articles of Confederation. Their proposal to wholly replace the Articles succeeded only because a supermajority of the states approved the Constitution.

Our Constitution is not perfect, of course. Madison defended Article V because it did create a way for states to correct problems in the federal government that did not depend on federal permission. That is why there are two ways to amend the Constitution, one going through Congress (two-thirds of Congress sends the proposals to the states) or one through the states (two-thirds of states call for a convention).

“It guards equally against the extreme facility which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” Madison wrote in Federalist 43. “It, moreover, equally enables the general and State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

A convention, I fear, would not focus on correction of errors, but wholesale revolution — which seems to be the call in politics these days from Trump to Sanders. Why not try a more conservative course of amending individual provisions one at a time through the two-thirds of Congress process. I think much good could be done simply by amending the Commerce Clause to limit federal power only to traffic (goods, labor, capital) that cross interstate borders. And we would not have to risk a wholesale rewriting of the Constitution.

There are 42 comments.

  1. 1
  2. 2
  1. Lazy_Millennial Member

    Why not try a more conservative course of amending individual provisions one at a time through the two-thirds of Congress process.

    Because we want to limit Congress’s power, and the buggers won’t give it up willingly.

    • #1
    • April 22, 2016, at 1:46 PM PDT
    • Like
  2. OkieSailor Member

    Absolutely agree, how would an amendment restricting the Commerce Clause be worded, John?

    • #2
    • April 22, 2016, at 1:53 PM PDT
    • Like
  3. Stad Thatcher

    Sorry, John. I’m all for a convention of the states.

    • #3
    • April 22, 2016, at 2:07 PM PDT
    • Like
  4. Lash LaRoche Inactive

    The states need to reassert their authority over the federal leviathan, and an Article V convention is the only way to do so short of a revolution.

    • #4
    • April 22, 2016, at 2:09 PM PDT
    • Like
  5. Jamie Lockett Inactive

    For those more well versed on the Article V movement than I – under what circumstances do you see an Article V Convention successfully producing good results? Any electorate that would produce the requisite numbers for conservative amendments to come out of an Article V convention would not need those amendments would it?

    • #5
    • April 22, 2016, at 2:53 PM PDT
    • Like
  6. Neil Hansen (Klaatu) Inactive

    Jamie Lockett:For those more well versed on the Article V movement than I – under what circumstances do you see an Article V Convention successfully producing good results? Any electorate that would produce the requisite numbers for conservative amendments to come out of an Article V convention would not need those amendments would it?

    The idea is premised on the belief those in Washington are not properly representing the people who put them in office. It is more of the base vs establishment nonsense where the only thing standing in the way of true conservative reform is an entrenched power structure rather than an American electorate which may like small government in concept but also likes virtually every government program.

    • #6
    • April 22, 2016, at 3:15 PM PDT
    • Like
  7. Commodore BTC Inactive

    Yoo could have spent five minutes with Randy Barnett and not have written such an uninformed post.

    Watch at 47 minute mark.

    But once a convention meets, it could propose any amendments it wants or even a completely redesigned Constitution.

    The US Senate has this exact same power! In perpetuity! Is John Yoo worried about it?

    The only difference between an Article V convention and the US Senate is who is proposing the amendments. Namely, the state legislatures, a far more conservative group.

    • #7
    • April 22, 2016, at 3:27 PM PDT
    • Like
  8. Nick Stuart Inactive

    The odds against an Article V convention actually being convened are only slightly less than my winning the Tour de France (I’m 65 and weigh 300 lbs).

    Nevertheless, let’s suspend disbelief for a moment and suppose arguendo that momentum builds and, say, 30 states have called for a convention, with just a few left to sway.

    If that isn’t enough to get the Beltway nomenklatura off their half-moons to send balanced budget and (indulge me) judicial term limits amendments to the states, it will be proof that an Article V Convention will be the only way to get it done.

    • #8
    • April 22, 2016, at 3:37 PM PDT
    • Like
  9. Jamie Lockett Inactive

    Nick Stuart:The odds against an Article V convention actually being convened are only slightly less than my winning the Tour de France (I’m 65 and weigh 300 lbs).

    Nevertheless, let’s suspend disbelief for a moment and suppose arguendo that momentum builds and, say, 30 states have called for a convention, with just a few left to sway.

    If that isn’t enough to get the Beltway nomenklatura off their half-moons to send balanced budget and (indulge me) judicial term limits amendments to the states, it will be proof that an Article V Convention will be the only way to get it done.

    This is what I don’t understand. If there really was enough of a conservative groundswell needed to make an Article V convention work in our favor would make it uneccessary.

    • #9
    • April 22, 2016, at 3:53 PM PDT
    • Like
  10. BrentB67 Inactive

    Mike LaRoche:The states need to reassert their authority over the federal leviathan, and an Article V convention is the only way to do so short of a revolution.

    The states are addicted to the debt funded largess of the federal.

    • #10
    • April 22, 2016, at 4:14 PM PDT
    • Like
  11. BrentB67 Inactive

    I don’t usually agree with John Yoo, but in this case he is absolutely correct.

    We don’t adhere to the Constitution we have so why amend it to something else to ignore?

    I can see this convention opening with 1,000 trial lawyers on George Soros’ payroll creating mayhem.

    State legislatures love blaming the federal, but love spending the ‘federal dollars’ that come to the states funded via deficits backed by the full faith and credit of the United States.

    • #11
    • April 22, 2016, at 4:19 PM PDT
    • Like
  12. Lash LaRoche Inactive

    BrentB67:

    Mike LaRoche:The states need to reassert their authority over the federal leviathan, and an Article V convention is the only way to do so short of a revolution.

    The states are addicted to the debt funded largess of the federal.

    That is a problem, indeed.

    • #12
    • April 22, 2016, at 4:55 PM PDT
    • Like
  13. livingtheLoneStarlife Inactive

    BrentB67:

    Mike LaRoche:The states need to reassert their authority over the federal leviathan, and an Article V convention is the only way to do so short of a revolution.

    The states are addicted to the debt funded largess of the federal.

    Beat me to it.

    I see no evidence that the states, all 50 of them, will ever agree to limit the federal cash cow.

    • #13
    • April 22, 2016, at 5:07 PM PDT
    • Like
  14. Lazy_Millennial Member

    livingthehighlife:

    BrentB67:

    Mike LaRoche:The states need to reassert their authority over the federal leviathan, and an Article V convention is the only way to do so short of a revolution.

    The states are addicted to the debt funded largess of the federal.

    Beat me to it.

    I see no evidence that the states, all 50 of them, will ever agree to limit the federal cash cow.

    Could get other stuff out of it though. I could see state politicians looking to create some openings by instituting Congressional term limits.

    • #14
    • April 22, 2016, at 5:12 PM PDT
    • Like
  15. Owen Findy Member

    Has John Yoo had Randy Barnett on his podcast, yet, to argue about this?

    • #15
    • April 22, 2016, at 5:16 PM PDT
    • Like
  16. Big Ern Inactive

    I completely disagree with Mr Yoo.

    Congress has proven itself to be wholly inadequate in preventing the creep of Federal power and the usurpation of States’ rights. Mr Yoo would have us continue doing what we’ve always done and hope for different results. American Constitutional federalism gives us the means to exercise checks and balances via Article V. An Article V convention would send a powerful message to the public that our system has lost its way, and we need to employ the tools we have to devolve power back to the states where it belongs. The Federal Legislature and Judiciary are clearly not equal to the task.

    Hold a Convention and hear the proposals!

    • #16
    • April 22, 2016, at 7:16 PM PDT
    • Like
  17. The Reticulator Member

    Big Ern: we need to employ the tools we have to devolve power back to the states where it belongs

    You do realize there are powerful forces at all levels that are always seeking opportunities to do just the opposite, don’t you? How do you plan to keep them out of the conventions?

    For example, when I point out the need for a crazy patchwork of state and local regulations, I find there are plenty of centralizers right here on Ricochet who want just the opposite. How do we keep that portion of the Ricochet crowd out of the process?

    • #17
    • April 22, 2016, at 7:20 PM PDT
    • Like
  18. Del Mar Dave Member

    BrentB67:I don’t usually agree with John Yoo, but in this case he is absolutely correct.

    We don’t adhere to the Constitution we have so why amend it to something else to ignore?

    I can see this convention opening with 1,000 trial lawyers on George Soros’ payroll creating mayhem.

    State legislatures love blaming the federal, but love spending the ‘federal dollars’ that come to the states funded via deficits backed by the full faith and credit of the United States.

    Spot on. The country has moved to a center-left position, a constitutional convention today would leave us vulnerable to moving even farther left. We can only reclaim the country with a (likely) century-long effort to take back the culture, the schools, the big non-profits and the media. After that,we might not even NEED a constitutional convention. We’d then do what Barry Goldwater said he wanted to do in politics, “…repeal laws, not pass them.”

    • #18
    • April 23, 2016, at 2:41 AM PDT
    • Like
  19. I Walton Member

    In this political atmosphere with a half educated cliche ridden people ready to follow any drum beat of angry spin, it’s very risky. Can we put together the kind of folks we had the first constitutional convention? What is it we want to change that couldn’t be fixed with two good supreme court appointments and a little legislation. The budget? dream on. Monetary policy? we can do that with legislation. Term limits? Perhaps but our biggest problems come from the permanent legislators in the regulatory state. Most of our Congress are inept and corrupt, that’s the nature of legislators everywhere always, it’s the well meaning bureaucrats and executives that want to take care of us, protect us from ourselves that are the main threat. Change monetary policy so Congress can’t just endlessly write checks would be far more salutary than any amendment I can think of. It’s a good constitution, the best ever created, designed for humans as they are. Every year we prove again that we need it and that is why liberals want to interpret away. Let’s not help them.

    • #19
    • April 23, 2016, at 4:18 AM PDT
    • Like
  20. Bob Wainwright Member

    Why is the danger of a runaway convention greater than the danger of Congress proposing (and the states ratifying) revolutionary amendments? Either method is difficult to do.

    • #20
    • April 23, 2016, at 5:33 AM PDT
    • Like
  21. Bob Wainwright Member

    OkieSailor:Absolutely agree, how would an amendment restricting the Commerce Clause be worded, John?

    In order for it it be bulletproof against liberal mal-interpretation, it would need to be longer than the entire text of he Constituion itself.

    • #21
    • April 23, 2016, at 5:38 AM PDT
    • Like
  22. Randy Webster Member

    What I like is that, while fooling around with the Constitution, they could change the ratifying procedure to “anything Randy Webster likes,” and it would be totally cool.

    • #22
    • April 23, 2016, at 8:52 AM PDT
    • Like
  23. HVTs Inactive

    A convention’s work would still have to gain three-quarters approval of the states under Article V, though the Convention could reject that process too.

    Professor, please explain how a Convention of States—the only constitutional power it possesses being to propose amendments—can simply “reject” the Constitutional requirement that amendments be ratified by three-fourths of the states?

    How does that work, exactly? This convention gets together and simply declares its proposals are now the law of the land?

    And then what? Fifty states say, “Okey, dokey—guess that settles it!” And 330 million people say, “Gosh, who knew that’s all it takes to make me a vassal?”

    Hell, why bother with the Convention then? Why not just get a bunch of people together, draft a new constitution and declare all must abide by it?

    Coming from a man of your stature, I want to believe this was a momentary lapse in thoughtfulness. But because of that stature, it has the effect of rank fear-mongering. I can only hope you will promptly correct what seems to be an obvious misstatement.

    If you will not, might you please explain how in the world any group of delegates to a convention can simply “reject” the Constitution’s Article V provisions and, ipso facto, change our nation’s governance?

    • #23
    • April 23, 2016, at 9:17 AM PDT
    • Like
  24. Chris Campion Coolidge

    Bob Wainwright:Why is the danger of a runaway convention greater than the danger of Congress proposing (and the states ratifying) revolutionary amendments? Either method is difficult to do.

    The reality is, when the danger of maintaining the status quo exceeds the danger of a runaway convention is when a convention will be held.

    We could be well past that status quo tipping point (in terms of debt, regulation, the state acting only in its own best interest not the people, etc), or two weeks past it. I think we’re a couple of decades past it.

    Only when things get bad enough will something change. Large organizations tend to change less the bigger they get. The biggest organization in the world is the USG.

    • #24
    • April 23, 2016, at 9:21 AM PDT
    • Like
  25. Commodore BTC Inactive

    as Scalia often said, the best parts of the Constitution are those that create separation of powers

    everything else can be ignored/misinterpreted by judges/executives

    Imagine an amendment granting 1/4 of either chamber of the US Congress or 1/4 of the state legislatures the power to force a vote on any regulatory action. That’s a meaningful amendment because it creates a further separation of powers. If it had been in place, most of Obama’s post-2010 agenda would have been stopped.

    • #25
    • April 23, 2016, at 9:21 AM PDT
    • Like
  26. Steve C. Member

    The sad reality is, Congress is like Dorothy in The Wizard of Oz. Wearing the ruby slippers* with all the inherent powers. Incapable of exercising those powers. One can appreciate Dorothy’s situation. She is ignorant. The leaders of Congress are unsympathetic. They know their powers and prerogatives, they fail to exercise same.

    Is it any wonder the peasants are revolting? The cupidity of the legislature makes a mockery of the theory of separate and co-equal branches. If the legislators have so little self respect, why is it surprising the people are displeased?

    * Yes, in the book they are silver. I doubt either would be comfortable.

    • #26
    • April 23, 2016, at 9:53 AM PDT
    • Like
  27. HVTs Inactive

    I can’t resist going all Trump Twitter on you, Professor . . .

    Words matter. Law professors ought not need be told this. Sad.

    There’s a profound difference between a Constitutional Convention (for which no provision exists in our Constitution) and the so-called Article V Convention (or “Convention of States”).

    Your conflation of the two is distressing, given your prominence and influence.

    A Constitutional Convention is convened so as to propose an entirely new constitution. Convention of States advocates do not want this and are not proposing a Constitutional Convention.

    They simply want to amend our existing constitution—that is, to use the Constitution’s amendment provisions (spelled out at Article V) to make salutary, legal (indeed, “Constitutional”!) changes to the Constitution.

    Also, you repeat the falsehood that:

    (t)he (1787) Constitutional Convention was not called to write a new frame of government, but merely to propose amendments to the Articles of Confederation.

    I can’t in this short space demonstrate the falsity of your claim; please look at link here. You labor under the common misunderstanding that the Confederation Congress “called” the 1787 Convention. It did not, and had not the authority to do so if it had tried. The States called their convention, using their sovereign political authority, which was not subject to Confederation Congress validation(!). (BTW the States announced they were rewriting the rules under which the Confederation operated . . . that they were writing a new constitution, in effect.)

    • #27
    • April 23, 2016, at 10:59 AM PDT
    • Like
  28. billy Inactive

    HVTs:

    A convention’s work would still have to gain three-quarters approval of the states under Article V, though the Convention could reject that process too.

    Professor, please explain how a Convention of States—the only constitutional power it possesses being to propose amendments—can simply “reject” the Constitutional requirement that amendments be ratified by three-fourths of the states?

    How does that work, exactly? This convention gets together and simply declares its proposals are now the law of the land?

    And then what? Fifty states say, “Okey, dokey—guess that settles it!” And 330 million people say, “Gosh, who knew that’s all it takes to make me a vassal?”

    Hell, why bother with the Convention then? Why not just get a bunch of people together, draft a new constitution and declare all must abide by it?

    Coming from a man of your stature, I want to believe this was a momentary lapse in thoughtfulness. But because of that stature, it has the effect of rank fear-mongering. I can only hope you will promptly correct what seems to be an obvious misstatement.

    If you will not, might you please explain how in the world any group of delegates to a convention can simply “reject” the Constitution’s Article V provisions and, ipso facto, change our nation’s governance?

    Yes, Mr. Yoo, please explain.

    • #28
    • April 23, 2016, at 2:54 PM PDT
    • Like
  29. carcat74 Member

    Jamie Lockett:For those more well versed on the Article V movement than I – under what circumstances do you see an Article V Convention successfully producing good results? Any electorate that would produce the requisite numbers for conservative amendments to come out of an Article V convention would not need those amendments would it?

    I’m a volunteer in Kansas for the Convention of States project. Firstly, it is NOT a constitutional convention! Call it an Article V convention, or a convention of states. More later….

    • #29
    • April 24, 2016, at 10:24 AM PDT
    • Like
  30. Luke Thatcher

    Caution: verbal irony ahead…

    Professor Yoo has the inside scoop on how the founders were idiots to put the fifth article in there like that. Because just like the rest of the Constitution: they obviously didn’t see us coming when they wrote it.

    Remember kids, the Constitution deserves reverence, deference, and adherence…

    Except for the fifth article. Y’know, cuz : oops, they made a mistake.

    Edit:

    Let us also remind ourselves that a constitutional power , check, or balance, which is not exercised, leaves no vacuum. The states are just as powerful as they ever were. And, that is as it should be.

    • #30
    • April 24, 2016, at 10:56 AM PDT
    • Like
  1. 1
  2. 2