Tuesday, March 5, 2013

The Perils of an Article V Convention

Last week, the Indiana Senate approved a resolution calling for an Article V Constitutional convention. Senate Joint Resolution 18 calls for a Constitutional convention “to return to an appropriate balance between the federal government and the states by specifically defining, and in so doing, limiting certain powers of the federal government”. The powers to be considered for limitation are “strictly confined to consideration of amendments concerning the limitation of the commerce and taxing powers of Congress”.

But the very idea of a Constitutional convention is fraught with unknowns and potential peril.

First, let’s review Article V of the Constitution (emphasis added; slavery language omitted):

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 State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Now note what Article V of the Constitution does not say about a convention:

  • It doesn’t say how the convention will be organized;
  • It doesn’t say whether applications by states with different proposals are aggregated;
  • It doesn’t say how many delegates states are entitled to;
  • It doesn’t say how states will vote;
  • It doesn’t say whether a majority or super-majority is needed; and
  • It doesn’t say whether the convention can be for a limited purpose.

I will acknowledge that SJR18 is a well-drafted resolution that endeavors to answer at least some of these questions. For example, SJR18 specifically says that “each state should have one vote, regardless of the size of its delegation” and also provides that Indiana’s application to call a convention should be “aggregated with the applications of any other state legislatures limited to one (1) or more of the subjects” specifically identified in SJR18.

But query what happens if another state passes a resolution calling for a convention limited to the subjects in SJR18 but provides for a different number of votes for each state? What then? For example, why would New York, California, or Texas be willing to have the same number of votes as Indiana? For that matter, why should Indiana be willing to have the same number of votes as Montana? Think back to your high school history or civics class and you’ll recall that one of the major issues confronting the original Constitutional Convention was the allocation of voting power and how votes would be counted not only in the Convention but also in the new country (with the eventual compromise of the House based on population and the Senate in which each state was treated equally … oh, and the decision that slaves were 3/5 of a person, which makes you wonder whether and how we should count undocumented immigrants now…). Thus, it seems that large states would be opposed to a one state, one vote approach in a new convention while small states would be thrilled at the prospect. But query, for yourself, whether Wyoming and New York should have the same “power” in a convention? Or, to say it differently, why should Wyoming’s 576,412 citizens have the same single vote as the New York’s 19,570,261 citizens? Wouldn’t that make each of Wyoming’s citizens the same as nearly 34 citizens of New York? Is that fair? Is that a basis upon which to amend the Constitution?

And think about this: Right now, Congress isn’t working so well, is it? So why should we presume that the delegates to a new Constitutional convention would be able to do any better? Don’t forget that, in addition to proposing, debating, and voting on amendments, they’d first have to adopt rules and procedures by which the convention would operate. Nope. I don’t see any possibility for dissent, division, or gridlock there… I mean, here’s just a single example (presuming that we’ve already dealt with the number of delegates and number of votes per state): Does the convention have to agree to a new amendment by simple majority, two-thirds, or three-fourths vote? Go back and read Article V again. It has both two-thirds and three-fourths requirements for proposal and passage of amendments. So shouldn’t one of those super-majority provisions apply to a convention? But, then again, there is no explicit requirement for such. But I’m sure that the delegates will vote on how to resolve that issue. Um, wait… I’m sensing a disturbance in the force, Luke.

Indiana’s application is limited to discussion of two issues and the law regarding appointment of delegates says that delegates would lose their positions if they exceeded their authority. But query whether either of those limitations is constitutionally binding. Delegates to the original Constitutional Convention were also bound by limited authority and the convention was called for a single purpose that was vastly exceeded. So there is at least an argument that the limitation on issues and/or authority may be ignored.

There’s also a potential issue with how delegates are chosen by the states. Indiana’s resolution calls for the Indiana General Assembly to select the delegates (and contemplates two delegates and two alternates). But while the Indiana General Assembly may be dominated by Republicans (thanks, largely to gerrymandering), the state itself is not. After all, we just elected Democrats to both Senate and Superintended of Public Instruction (beating out a darling of the right). Thus, if the selection of delegates is left solely to the Indiana General Assembly, then its likely that a very sizeable minority of the population would not be represented by those delegates.

And we haven’t even gotten to the dangerous part, yet.

You see, the real problem with crafting amendments through the convention process is that we have no idea what that convention might decide to do. The fail safe is, of course, the fact that amendments proposed by a convention would still need to be ratified by three-fourths of the states. But ask yourself whether we really trust some of our elected state legislators (like the one who proposed the convention in the first place) to debate and decide these issues. Take a state like Indiana where Republicans hold a supermajority in both houses and in which the far right and Tea Party legislators seem to have forced their caucus further and further to the right. Do we really want legislators who have proposed bills allowing for nullification, the arrest of federal officers, fear of bogeyman UN takeovers, a desire to force children to recite The Lord’s Prayer, disbelief in science (evolution and climate change, for example) to be voting on amendments to the United States Constitution?

Just imagine a proposed amendment to replace the federal income tax with a national sales tax. That (and similar proposals) have been common ideas from the libertarian, far right, and Tea Party blocs. I can easily see such an amendment being adopted by a convention, especially if each state has just a single vote. Now just imagine what the campaign to convince state legislators to support that amendment would look like. Think of the amount of money that would be spent to try to get that amendment passed. And how much influence would those at the bottom of the economic ladder have over that process and debate? How much money could people who barely feed their families spend to influence their legislators?

It’s also important, I believe, to think about what else might come out of a Constitutional convention. I bet that there are a lot of people out there who would be willing to vote for an amendment calling the United States a “Christian nation” or allowing school prayer. Similarly, I suspect that a lot of people would be willing to vote for an amendment limiting application of the First Amendment to “Judeo-Christian” faiths or otherwise limiting the ability of Muslims (or other religious minorities) to practice their faith. There would probably even be support for rolling back certain civil rights protections or outlawing abortion entirely. Maybe there would even be support for an amendment to allow corporations to vote or to prohibit the teaching of safe sex or climate change or evolution. Just look at some of the crazy bills that have been offered in state legislators to get an idea of the type of things that might come before a convention.

Would any of these sorts of “crazy” amendments be passed by three-fourths of the states? I’d certainly hope not. But who knows? What kind of pressure would people put on their legislators (or, perhaps a better question is what kind of outside pressure would be put on legislators) to “go after those terrorist Muslims”? Imagine the vitriol that would be directed at the handful of legislators opposing a “Christian nation” or public prayer amendment. Most importantly, are those the sorts of things we really want to be discussing in the context of amendments to the Constitution? I mean, just look at the rancor and strife that we’re suffering through now over things as relatively “simple” as healthcare and the budget. When it comes to issues like abortion and discrimination, people have died or been killed. Now just imagine those issues being debated, not as part of a state statute or basic policy, but as a change to the Constitution.

I think when you look at these sorts of issues from a macro perspective, you’ll begin to realize that our democracy is still relatively fragile. If you discount the original Bill of Rights (10 Amendments), we’ve only amendment the Constitution 17 times (and of those, 1 was adopted just 5 years after ratification of the Constitution, 3 were adopted in the immediate aftermath of the Civil War to address slavery and equality, one was repealed by another just 22 years after its enactment, and 3 were to expand suffrage). Amending the Constitution is really meant to be a slow, laborious, difficult process. Putting who knows what sorts of amendments before the states could lead to a sort of political chaos and havoc that we may not be well-suited to weather.

What happens when all of the “red states” vote to repeal the 24th Amendment’s prohibition on poll taxes and the “blue states” vote against such a repeal? What happens when the red states vote to eliminate income taxes or to outlaw Islam or to return to the gold standard … and blue states don’t? What happens when red states vote to declare the US a Christian nation or blue states vote to erect a more concrete wall of separation between church and state. It’s all too easy to see the fault lines that could be exacerbated by a slate of proposed amendments to the Constitution and how various subsets of our nation would react.

Unfortunately, given the current political climate, given the degree of hostility that we’re seeing in our politics, given the money and its corrupting influence on our political system, I can’t say that I’m particularly trusting of how either a Constitutional convention or the state ratification process would work. I fear that the country that would emerge would be far, far different from the country we have now. Don’t get me wrong; we have serious problems that we need to resolve. But I don’t think that an Article V convention is the way to resolve those problems; rather, I think that convention would be much more likely to cause more problems and of a far more serious nature.

One more quick point: I think it’s worth taking note of just why the desire to have a Convention is being expressed. It’s obvious from the limitations that Indiana’s application focuses on. The point is to limit the taxing and commerce clause power of Congress. Hmm. Where have issues relating to taxing and the commerce clause been discussed recently? Oh, yeah. That’s right. Obamacare. You see, some Republicans (most of Indiana’s Senate Republicans) believe that Obamacare — the effort to expand access to healthcare to millions of uninsured and to make the healthcare insurance coverage more fair — is so wrong, so unconstitutional, that we need a Constitutional convention to scale back that power. That, in a nutshell, is what this is all about.

Republicans lost on the issue in Congress. They’ve tried to repeal Obamacare more than 30 times … and lost. And they lost in the United States Supreme Court (a conservative-leaning Court, I might add). So what else can they do? Amend the Constitution. But they know that they don’t have the 2/3 votes needed in Congress (remember, Democrats control the Senate and Republicans have a narrow majority in the House, even though they lost the popular vote for Congress) to propose an amendment. Thus, the effort to call an Article V convention. Just to overturn Obamacare.


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At Monday, March 11, 2013 9:52:00 AM , Anonymous Robert G. Natelson said...

Mr. Wallack:
You may be unaware of it, but extensive scholarship on Article V over the last 30 years---including my own--- has answered most of your questions about the process and about the Constitution's "convention for proposing amendments. (It's not a constitutional convention.) See, e.g., http://constitution.i2i.org/articles-books-on-the-constitution-by-rob-natelson/ (second topic down) and the postings at http://constitution.i2i.org/category/article-v-convention/. Of course, some potential amendments would divide the country about evenly; they simply will not be ratified or, far more likely, will not even be proposed.
Rob Natelson


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