Two members of the Utah House of Representatives, David Clark (R-Santa Clara) and Bradley Daw (R-Orem), introduced resolutions to this legislative session calling for a Constitutional Convention (or Con Con). This is correctly called an Amendment Convention or Article V Convention, since it is authorized in that article of the US Constitution:
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 . . .
I have three objections to a Con Con:
First: We don't need one.
If we find that the United States Constitution doesn't meet a specific need of the people, we can deal with that specific need through a specific amendment. It's a very clear, very simple, very logical and very successful process. Some have estimated that over 10,000 amendments have been proposed to Congress – 856 during the five Congresses sitting in the 1990s; 214 in the 101st Congress alone! [1]
The best advantage of the one-at-a-time amendment process is its ability to winnow-out bad ideas. First, the proponents must convince 358 people (67 senators and 291 representatives) that a given change is necessary. That is difficult on its own, and the difficulty is by design, to prevent amendments unworthy of the august instrument, such as:
Prohibiting involuntary busing of students (submitted to the 102nd Congress).
Establishing the right to a home (105th).
Defining air, water, wildlife and other resources as common property of the people (105th).
Specifying a right to equal, high-quality health care (107th).
Formally authorizing the Senate filibuster (109th).
Additionally, there have been 11 proposals (since 1986) to revoke the 22nd Article of Amendment . While we may not object to the content, the fact that proponents are 0-11 over 25 years will, hopefully, demonstrate that the people do not want it, and prevent future Congresses from wasting time on it.
Assuming the proposal gets to the States, proponents then have to convince a strategically-placed three-quarters of the 12,800 people that comprise the 50 state legislatures. This means that every successful amendment has been subjected to the closest scrutiny – a minimum of 40 separate debates.
Giving that level of scrutiny could be impossible if a Con Con forces us to deal with dozens of proposals. Dozens of proposals? Wouldn't be the first time: Virginia sent 40 proposed Constitutional changes with their ratification; New York sent 33; Rhode Island sent 21; and so on.
As we consider a Con Con, let us remember the wonderful old Parliamentarian saying, "Motion dies [a well-deserved death] for lack of second."
Second: The deputies.
As with any political appointee or electee, we need to ask hard questions, and we need to demand clear answers:
What qualifications must each deputy meet? How will each be chosen? The several States will choose their representatives based on that State's individual preference. This, by itself, unnerves me greatly. I submit there will be no statesmanship in an endeavor fraught with political wrangling from square one. Think of the political resume bullet! "Was a deputy to the Constitutional Convention," the first in over two centuries! Everyone with political aspirations will want a seat at this pot-luck table, whether they bring a decent meal or not, and we know that many will use the seat to further their own personal ambitions at the expense of the general welfare.
How many deputies will attend? The easiest way to staff a Con Con would be one deputy per state (never going to happen). I see one deputy per electoral vote as the most logical second choice. This was actually proposed by our own Senator Hatch in the 1980s (yes, sports fans, Orrin Hatch supported a Con Con; one more item for your list) – one delegate from each congressional district plus two statewide delegates. That would mean 535 people who have absolutely no rules, no agenda (except what they bring with them) and absolutely no accountability (to anyone!) to decide the fate of the 300+ million people in the USA. That, by itself, should be enough to scare anyone away from supporting a Con Con.
Will they vote state by State or as individuals? Logic suggests that, since the States called the Con Con, each delegation should cast one vote for that State, by majority or consensus or whatever means they chose. Again, never going to happen, unless each State figures out a way to homogenize the political opinions of its delegates.
That, in itself, could cause huge problems. Utah, for example, has been called the most conservative state in the Union, but it isn't entirely conservative. The State legislature has a greater majority of Republicans, but even among the GOP, there is a wide spectrum of political opinion. Could the Utah legislature send 6 die-hard conservatives to the Con Con? It's possible, but suppose that the Democrats demand one appointment. They could, given that the 2nd Congressional District keeps electing a Democrat. There could be a lawsuit. The federal courts could become involved; in fact, if the State is a party to the suit, the Supreme Court could and, in my opinion, should take original jurisdiction. The matter could end up in court for so long that Utah could miss the convention!
This selection process gets hairier and scarier with every sentence, and we have yet to mention the history of Congressional voting. In the early days, sectional divisions predominated: The agricultural south against the industrializing north; the settled east against the frontier west, etc. Today, it is Republicans against Democrats or conservatives against liberals, meaning each delegate would be more likely to vote with his or her political allies, instead of residential allies. But even this is not certain. Suppose a federal lands proposal came up – western states have huge portions under federal control, eastern states don't.
Just thinking about all these possibilities brings to mind the image of a Con Con with Charlton Heston in the background, screaming like he did in Planet of the Apes, "It's a madhouse, a madhouse!"
It's a possibility not so remote as you or I might imagine.
Third, remember the loudest complaint about the last Con Con?
Deputies to the Federal Convention of 1787 were sent with specific instructions: To amend the Articles of Confederation into a workable document. They didn't. Very early on, they decided the Articles were hopeless, and they abandoned that effort to start over from step one.
There is no guarantee that a modern Con Con would act differently, and much evidence suggesting they would follow the example of 1787. Even if some state legislatures appoint deputies that have specific instructions, other states won't, and those deputies will push their agenda as hard as they can. Rep. Daw, in HJR014, "Joint Resolution Applying for an Article V Amendments Convention" does make an effort:
First: We don't need one.
If we find that the United States Constitution doesn't meet a specific need of the people, we can deal with that specific need through a specific amendment. It's a very clear, very simple, very logical and very successful process. Some have estimated that over 10,000 amendments have been proposed to Congress – 856 during the five Congresses sitting in the 1990s; 214 in the 101st Congress alone! [1]
The best advantage of the one-at-a-time amendment process is its ability to winnow-out bad ideas. First, the proponents must convince 358 people (67 senators and 291 representatives) that a given change is necessary. That is difficult on its own, and the difficulty is by design, to prevent amendments unworthy of the august instrument, such as:
Prohibiting involuntary busing of students (submitted to the 102nd Congress).
Establishing the right to a home (105th).
Defining air, water, wildlife and other resources as common property of the people (105th).
Specifying a right to equal, high-quality health care (107th).
Formally authorizing the Senate filibuster (109th).
Additionally, there have been 11 proposals (since 1986) to revoke the 22nd Article of Amendment . While we may not object to the content, the fact that proponents are 0-11 over 25 years will, hopefully, demonstrate that the people do not want it, and prevent future Congresses from wasting time on it.
Assuming the proposal gets to the States, proponents then have to convince a strategically-placed three-quarters of the 12,800 people that comprise the 50 state legislatures. This means that every successful amendment has been subjected to the closest scrutiny – a minimum of 40 separate debates.
Giving that level of scrutiny could be impossible if a Con Con forces us to deal with dozens of proposals. Dozens of proposals? Wouldn't be the first time: Virginia sent 40 proposed Constitutional changes with their ratification; New York sent 33; Rhode Island sent 21; and so on.
As we consider a Con Con, let us remember the wonderful old Parliamentarian saying, "Motion dies [a well-deserved death] for lack of second."
Second: The deputies.
As with any political appointee or electee, we need to ask hard questions, and we need to demand clear answers:
What qualifications must each deputy meet? How will each be chosen? The several States will choose their representatives based on that State's individual preference. This, by itself, unnerves me greatly. I submit there will be no statesmanship in an endeavor fraught with political wrangling from square one. Think of the political resume bullet! "Was a deputy to the Constitutional Convention," the first in over two centuries! Everyone with political aspirations will want a seat at this pot-luck table, whether they bring a decent meal or not, and we know that many will use the seat to further their own personal ambitions at the expense of the general welfare.
How many deputies will attend? The easiest way to staff a Con Con would be one deputy per state (never going to happen). I see one deputy per electoral vote as the most logical second choice. This was actually proposed by our own Senator Hatch in the 1980s (yes, sports fans, Orrin Hatch supported a Con Con; one more item for your list) – one delegate from each congressional district plus two statewide delegates. That would mean 535 people who have absolutely no rules, no agenda (except what they bring with them) and absolutely no accountability (to anyone!) to decide the fate of the 300+ million people in the USA. That, by itself, should be enough to scare anyone away from supporting a Con Con.
Will they vote state by State or as individuals? Logic suggests that, since the States called the Con Con, each delegation should cast one vote for that State, by majority or consensus or whatever means they chose. Again, never going to happen, unless each State figures out a way to homogenize the political opinions of its delegates.
That, in itself, could cause huge problems. Utah, for example, has been called the most conservative state in the Union, but it isn't entirely conservative. The State legislature has a greater majority of Republicans, but even among the GOP, there is a wide spectrum of political opinion. Could the Utah legislature send 6 die-hard conservatives to the Con Con? It's possible, but suppose that the Democrats demand one appointment. They could, given that the 2nd Congressional District keeps electing a Democrat. There could be a lawsuit. The federal courts could become involved; in fact, if the State is a party to the suit, the Supreme Court could and, in my opinion, should take original jurisdiction. The matter could end up in court for so long that Utah could miss the convention!
This selection process gets hairier and scarier with every sentence, and we have yet to mention the history of Congressional voting. In the early days, sectional divisions predominated: The agricultural south against the industrializing north; the settled east against the frontier west, etc. Today, it is Republicans against Democrats or conservatives against liberals, meaning each delegate would be more likely to vote with his or her political allies, instead of residential allies. But even this is not certain. Suppose a federal lands proposal came up – western states have huge portions under federal control, eastern states don't.
Just thinking about all these possibilities brings to mind the image of a Con Con with Charlton Heston in the background, screaming like he did in Planet of the Apes, "It's a madhouse, a madhouse!"
It's a possibility not so remote as you or I might imagine.
Third, remember the loudest complaint about the last Con Con?
Deputies to the Federal Convention of 1787 were sent with specific instructions: To amend the Articles of Confederation into a workable document. They didn't. Very early on, they decided the Articles were hopeless, and they abandoned that effort to start over from step one.
There is no guarantee that a modern Con Con would act differently, and much evidence suggesting they would follow the example of 1787. Even if some state legislatures appoint deputies that have specific instructions, other states won't, and those deputies will push their agenda as hard as they can. Rep. Daw, in HJR014, "Joint Resolution Applying for an Article V Amendments Convention" does make an effort:
This resolution applies to the United States Congress for a convention to be called to propose an amendment to the United States Constitution providing that an increase in the federal debt requires approval from a majority of the legislatures of the separate states; directs that the amendments convention must be entirely focused upon and exclusively limited to that subject . . .
Here's a question for Rep. Daw, if the Con Con is to have only subject, why bypass the established, accepted, less costly (in time, effort and money) process for one with so many unknowns and risks? Rep. Clark's HJR002, "Joint Resolution Applying to Congress to Call a Constitutional Convention on the Process for Repeal of Federal Laws" fails even to mention this serious point.
Last year, the American Spectator quoted Phyllis Schlafley, founder and president of The Eagle Forum, in discussing those who think a Con Con could be controlled.
Last year, the American Spectator quoted Phyllis Schlafley, founder and president of The Eagle Forum, in discussing those who think a Con Con could be controlled.
"They're dreaming . . . Have you ever been to a big convention? You know perfectly well that once a convention is convened, it can do whatever it wants to. Whoever is handling the gavel can gavel people down and do whatever they want. I've been to too many conventions, and there's no way it can be limited."
To bolster her case, Schlafly cited a letter sent to her in 1988 by former [Chief Justice of the United States] Warren Burger, which is viewable on the Eagle Forum website.
Burger wrote that "there is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or to one issue, but there is no way to assure that the Convention would obey." [2]
Cinematically speaking, we could end up with Animal House, or worse, Animal Farm.
The last resort: Ratification.
Whatever comes out of a Con Con must still be ratified by three-quarters of the several States to take effect. We don't have to agree to all of the proposals; we don't have to agree to any of them. We didn't, after all, ratify two of the original articles in the Bill of Rights when they were proposed, and a half-dozen since have gone down in flames. But, that means another 50 fights in the 50 States.
Financial considerations should never prevent us from doing what is right, but in such economic times as these, why spend the time, effort and money when we don't have to? A Con Con would cost the United States and the several States a billion dollars or more before all is said and done. A scant sum, perhaps, in view of this year's estimated $1.55 trillion deficit, but, in the immortal words of Sen. Everett Dirkson (R-IL), "A billion here, a billion there, pretty soon it adds up to real money."
After considerable analysis and research, I find not one persuasive argument for a Constitutional Convention, and many compelling arguments against it.
I also find myself reminded of one more quote – from Geena Davis in 1986's The Fly: "Be afraid. Be very afraid."
Thanks for listening, tune in next week for another rant.
[1] According to US Constitution Online (http://www.usconstitution.net/constamprop.html).
[2] Philip Klein, "Is It Time for a Convention?" American Spectator, October 2010 (http://spectator.org/archives/2010/10/12/is-it-time-for-a-convention).
Whatever comes out of a Con Con must still be ratified by three-quarters of the several States to take effect. We don't have to agree to all of the proposals; we don't have to agree to any of them. We didn't, after all, ratify two of the original articles in the Bill of Rights when they were proposed, and a half-dozen since have gone down in flames. But, that means another 50 fights in the 50 States.
Financial considerations should never prevent us from doing what is right, but in such economic times as these, why spend the time, effort and money when we don't have to? A Con Con would cost the United States and the several States a billion dollars or more before all is said and done. A scant sum, perhaps, in view of this year's estimated $1.55 trillion deficit, but, in the immortal words of Sen. Everett Dirkson (R-IL), "A billion here, a billion there, pretty soon it adds up to real money."
After considerable analysis and research, I find not one persuasive argument for a Constitutional Convention, and many compelling arguments against it.
I also find myself reminded of one more quote – from Geena Davis in 1986's The Fly: "Be afraid. Be very afraid."
Thanks for listening, tune in next week for another rant.
[1] According to US Constitution Online (http://www.usconstitution.net/constamprop.html).
[2] Philip Klein, "Is It Time for a Convention?" American Spectator, October 2010 (http://spectator.org/archives/2010/10/12/is-it-time-for-a-convention).
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