Why Not a Convention of the States?   Leave a comment

Slate is worried that there is a “secretive campaign by state legislatures to pass conservative amendments” and “rewrite the Constitution.”


When I originally posted this series on Article V, I obviously researched the subject, but the skids are greased now, so there’s been lots going on in those six months.

Slate may believe that “newest movement to save the republic” began in December at Mount Vernon, but the idea has been around since the US Constitutional Convention in Philadelphia in 1787. Reporters – Ben Franklin aside – were banned from that convention too because the proposals were not ready for prime time and the delegates were savvy enough to realize that their discussion would be derailed if they went public with their proposals too soon.

What those delegates 217 years ago were proposing were needed changes to a governing document that was not working. The Articles of Confederation had no means for amendment, so the entire document had to be set aside and replaced by another one, which turned out to be the Constitution of the United States. As part of reformulating our foundational document, the delegates included a means to amend the Constitution so that it would not be necessary to shred it in the future. It’s been amended less than 30 times, always be Congress, but our Founders were wary of power in the hands of an elite, so they included a means for the states to amend the Constitution when Congress refused to do so. We’ve come close to an Article 5 convention a few times in those years, but Congress has always moved before things got to that point rather than lose its control of the process.

Sadly, Congress seems unable or utterly unwilling to enact needed reforms now, so 34 states met at Mount Vernon to discuss and plan an Article 5 convention.

That is not a Constitutional Convention. What happened in Philadelphia in 1787 was a Constitutional Convention. This is a states-called convention to propose amendments. The difference matters. Nobody can rewrite the US Constitution using Article 5. They can only propose amendments for the states to later ratify … or not, as the case may be.

When I posted my series, I did not know that Mark Levin was about to come out with the Liberty Amendments. I ended up doing a post on the book when I found out about it. Levin is thinking in this direction because America is thinking in this direction. Congressional approval ratings are in the cellar, the President and Supreme Court are not well-loved, the public feels the federal government is out-of-control and a risk to our liberty, we see corruption, bankrupt entitlement programs, a tax code you need two attorneys and three accountants on speed dial to understand, and a bureaucracy that stifles economic growth and liberty.

Why shouldn’t nearly one hundred state legislators from 34 different states gather to discuss what to do about the current circumstances?

A recent Gallup poll found that 75 percent of Americans support Congressional term limits while other polls indicate 74 percent support a balanced budget amendment. More than 30 states have already asked for an amendment on a balanced budget.

As James Madison describes in his notes, many Framers were concerned that Congress alone would have the authority to propose amendments:

“Col: Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believe would be the case. Mr. Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of 2/3 of the Sts.”

To amend the Constitution, two-thirds of the state legislatures (34) must pass an application for a convention to occur, then 38 state legislatures would need to ratify any one amendment for it to become part of the Constitution. Historically, it has been interpreted to mean that all 34 applications must be on a single amendment request, but the langugage of Article V does not necessarily require that. We’re within one or two applications on a balanced budget amendment, but the opposition is working to nullify some of them, so a general states-called convention may be a better option.

This group plans to meet again this spring. In preparation for that, I’m reposting my series – maybe with some new material.

I don’t think we should be afraid of confronting our national demons and dealing with them. If we continue on the course we’re on without an attempt to fix things, the economy is going to collapse under the weight of an insanely obese federal government and then …? Well, I think the nation is going to dissolve. The question is, do we do it violently (historically, that is how it happens) or do we do it reasonably (historically, that almost never happens). The third way is to avoid the mess by taking steps to fix the problems. We may find in doing this that the progressives come out with a whole bunch of amendments that take away liberty and we may find that the states eat them up like candy. It’s possible. Then we have our answer. What we want to save is a fantasy that is no longer worth saving. But ….

If a states-called convention for proposing amendments produces some real changes toward liberty, then we’ve gotten something worthwhile.

Either way, we have a discussion about what the Constitution really means and whether or not we as a people still hold to those principles.

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