Un-Conventional

Lee Helms  |  March 22, 2019

In January I received a solicitation from advocates of a “Congressional Reform Act” 28th amendment to the Constitution, urging recipients to support a constitutional convention. It is one of many such amendment proposals floating in the political winds these days, each of which calls for a constitutional convention.

Article V of the Constitution spells out two methods for amending it:

1. Congress passes a specific amendment and sends it to the states for ratification. This process has been used to enact all 27 current amendments.
2. Two-thirds of the states (34 out of 50) call for a “Convention of States,” which can propose unlimited amendments, up to and including a total rewrite of the Constitution — Bill of Rights and all. This process has not been used since 1787, when the Articles of Confederation were discarded in favor of our present Constitution.

Precedent counts for a lot in law, and the 1787 Constitutional Convention that changed the foundation of our government from the Articles of Confederation to our present Constitution set two precedents that make all future constitutional conventions dangerous.

The 1787 convention was called for the purpose of proposing amendments to the Articles of Confederation, but attendees instead threw out the Articles of Confederation and wrote our present Constitution. Based on that precedent, another con-con could just as easily throw out our present Constitution (and Bill of Rights and all) and write something else. That is not “runaway convention” alarmism. There was a lengthy debate about it when calls for a con-con arose during the Reagan administration, and the legal consensus was that a constitutional convention would be a sovereign body, not bound by any limits, conditions, or expectations. There would be no limit to the scope of amendments that could be proposed, up to and including “amending” the entire Constitution.

Convention advocates have tried to assure the public that the convention they promote could be, for example, “restricted to proposing amendments that will impose fiscal restraints on the federal government, limit its power and jurisdiction, and impose term limits on its officials and members of Congress.” The precedent set by the 1787 convention says that that statement is not true. A constitutional convention can exceed the stated purpose of its call.

Convention advocates have also tried to assure the public that amendments proposed by an Article V convention of states would not take effect until ratified by three-quarters of the states (38 out of 50). Unfortunately, that ratification procedure is spelled out in the Constitution itself, which means that it could also be subject to amendment.

A constitutional convention held today would be a prime target for influence by those who harbor ambitions of becoming American royalty, running the nation like a feudal kingdom, and further reducing or eliminating the ability of We the People to influence government.

In fact, when our current Constitution was just a proposal, the amendment ratification procedure spelled out in the Articles of Confederation required approval by Congress and ratification by all of the state legislatures. That procedure was ignored, and the proposed Constitution was adopted under the ratification procedure spelled out in the proposed Constitution. Based on that precedent, delegates to a constitutional convention could claim that they have the power to sweep aside the three-fourths-of-states ratification requirement in favor of a procedure that imposes far less of a barrier.

In a worst-case scenario, convention delegates could propose amending the ratification process to allow ratification by a mere majority vote of the convention delegates themselves. That would set up a conflict between those Americans inclined to accept new terms of ratification and those who insist only the previous terms are valid.

The delegates to the 1787 convention were mostly men who had worked and fought for independence from the British monarchy. They had a vested interest in giving our fledgling nation the best chance possible to succeed and prosper. There appear to be few such patriots today in positions of authority.

The dominant theme of our current, money-poisoned political environment is increasing the prosperity and influence of the wealthy and powerful. A constitutional convention held today would be a prime target for influence by those who harbor ambitions of becoming American royalty, running the nation like a feudal kingdom, and further reducing or eliminating the ability of We the People to influence government. It would also be a prime target for influence by those who believe that the U.S. should be officially declared a Christian nation.

Convention advocates claim that 28 of the necessary 34 states have passed resolutions calling for an Article V convention. Mensans, and indeed all Americans, would be wise to find out whether or not they are living in a state that has passed such a resolution, and if so, urge their state representatives to consider rescinding that resolution.

We got lucky in 1787. That will not happen again.