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A New Constitutional Convention Is Not the Conservative Option
The 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.
Published in Immigration, Law
On paper, perhaps, the States retain their sovereign powers. But informal constitutional amendments such as Wickard v. Filburn, Roe v. Wade, NFIB v. Sebelius, have eroded that sovereignty to near nothingness.
Article V was written as it was in order to ensure the States could re-balance power away from the the federal government and return it to the States. The Framers realized the States must have the ability to do this without interference from the Federal government. They understood that those abusing power do not reform themselves: reform must be imposed upon them. Congress is not going to propose amendments that reduce Federal power unless there’s overwhelming pressure upon it (i.e., huge numbers of members fear losing their seats if they do not).
But Article V means nothing if States do not take the action it affords them. That’s what Convention of States Project is all about . . . to force State Legislators to fulfill the Constitutional role (enforcing federalism) that’s assigned to them.
Nope, it’s too late. We’ll have to wait for the next historic opportunity to hold an amending convention.
Because, you see, there is no crisis. There is no cause for urgency in this regard; according to Yoo. We need only to keep trying the same things. This way we can expect other results; like rational people do.
I say The Constitution is not to be preserved like an art piece in a museum. It is a foundation which has been chipped away at, and needs Shoring up.
Seriousness aside, I find a certain amount of humor in that the “text-yoo-a-list” is incorrectly referring to an amending Convention as a constitutional convention. There is no such authority to do away with the current Constitution in a convention pursuant to Article 5.
It is a convention to propose amendments. It is not a convention to propose constitutions. A convention to propose a constitution would literally be unconstitutional.
Yeah, it’s sort of shocking when scholars in the world’s most ‘words matter’ profession get it wrong. (Sigh.) Then again, how in the name of the Magna Carta can we be shocked . . . Obama taught Con Law at one of the most renowned law schools in the land, not to mention he graduated from one.
Let’s give the Professor his due . . . this point isn’t crazy from a legal standpoint:
But this is absolutely insane from a political standpoint. First, you are asking the chief beneficiaries of power being concentrated in DC to vote against their interests . . . “one at a time,” so multiple votes. Good luck with that! Second, you can’t build popular pressure on topics that are obscure for typical voters . . . ever try getting people worked up over the Commerce Clause? Finally, to obtain & sustain the change we need, States must be reminded of their unused Constitutional power and get comfortable using it—often!
I’m still waiting for Mr. Yoo to answer some of the challenges advanced in these comments.
I check every day, and … crickets.
And, it’d be great if he’d argue the idea with Randy Barnett in his podcast. Unless he already did … ?
Amen! I’m sure he considers Randy Barnett a worthy opponent, so why not Ricochet Law School hosting this debate? I wonder, what would Richard Epstein have to say about Article V? If we can get him to stop talking in paragraphs maybe I’d be able to follow him and figure it out. {:-)
… crickets …
Bueller? … Bueller? … Bueller?
Like a ghost town…tumbleweeds.
I’m pretty sure Yoo never engages members in the comments.
So, he’s just <BOORTZ>stirrin’ the puddin'</BOORTZ>?
Well, I had looked forward to John Yoo’s answers to these challenges. I’m damned disappointed.