Sally Morris’ recent vitriolic attack on the Convention of States initiative raised some legitimate concerns that deserve thoughtful responses. Amending the Constitution is a very serious business. Supporters of the Convention of States project – from activists to legal scholars, from state legislators to governors and senators – appreciate the significance and risk. They understand both the risk of amending the Constitution and the risk of failing to restore constitutional authority.
The framers of the Constitution expected changes would be necessary and included provisions for making amendments, but they placed very high thresholds for both proposing and ratifying changes. On September 15th, 1787, delegate George Mason pointed out the dangers of an amendment process dependent on the cooperation of Congress. The Framers accepted an oppressive Congress would never propose amendments to curtail their own power. Therefore, they unanimously agreed to add a second method for proposing amendments in Article V of the Constitution where two-thirds of the state legislatures – independent of the Congress – could call a convention for proposing amendments. The safeguard of ratification remained unchanged: three fourths of the states needed to vote for ratification for an amendment to become part of the Constitution.
If the convention provision was approved unanimously, then why did James Madison oppose a convention in the unsourced quote provided by Morris?
Context is important when evaluating purported conflicting statements. The extensively redacted quote was from a letter written by Madison responding to a specific question about New York’s call for a second general convention, not necessarily an Article V convention. Many of the leading Anti-Federalists were from New York, including the sitting governor George Clinton. Madison wrote the letter while the acrimony from contentious ratification fights was still fresh and ongoing, but before the Bill of Rights amendments were proposed to allay fears and satisfy reservations concerning protection of civil liberties. Congress was five months away from taking office. The Anti-Federalists sought to drag out the process by demanding changes before ratification and adoption. New York requested 33 alternations to the Constitution. The Federalists could not allow the implementation of the Constitution to be filibustered or delayed to death by the perfect being made the enemy of the good.
In the letter, Madison argued for proposing amendments through Congress to legitimize the new government and as the quickest way to propose amendments guaranteeing civil liberties while avoiding a repeat round of ratification fights. There is no indication Madison’s comments were general or apply beyond the particular event and political environment the Federalists were trying to navigate at the time.
Earlier, both Madison and Alexander Hamilton – in addition to voting for the provision – favorably referenced the Article V convention in the Federalist Papers No. 43 and No 85 respectively. A convention, called by the state legislatures for proposing amendments, is the process the framers envisioned.
Some confusion stems from Morris conflating a general or constitutional convention with a convention for proposing amendments to stain the latter with the negative connotation of the former. They are not the same. A general or constitutional convention writes a new constitution intended to replace, not amend, the existing Constitution. There are no active movements or prominent leaders calling for a general convention.
From quips about our lack of modern day statesmen to 50-year-old conspiracies to supplant the Constitution with social justice mandates, the core objection Morris raises is the peril of a runaway convention. This is a sensible concern requiring an earnest answer. What happens if the delegates propose an amendment to ban fossil fuels or grant citizenship to four-legged mammals? Those are extreme examples, but the risk is real.
If we consider how the Articles of Confederation were replaced in 1789, we see the same risk is run daily without a convention. Any person or group — from David Duke to the Hell’s Angels biker gang to social justice warriors — can write a new constitution. If they can persuade state legislatures to ratify their document, they can form a government. Of course, the ratification of random documents is unconstitutional, and nobody seriously thinks the state legislatures will ratify such a document.
The delegates to the 1787 Constitutional Convention drafted the Constitution starting with a clean slate. While most of the delegates enjoyed the authority of their state legislature, ratification was the legal basis for dissolving the Confederation and forming a new government despite a clause in the Articles of Confederation stating, “the Union shall be perpetual.” In the end, our state legislatures are the principal protection against the Racist and Violent Gang Kingdom forming today and against any bad amendments, regardless of the source.
Is the threat any greater than with our ongoing constitutional convention in the form of the US Congress? Congress can propose an amendment at any time. Just two years ago, Senate Democrats pushed aggressively for a new amendment to strip much of the freedom of speech protection from the First Amendment. Fortunately, the measure failed, but the fact remains the “runaway” risk is substantially similar to the danger we face today in Congress.
The next logical question is who would advocate repealing the Freedom of Speech (besides Senate Democrats who already did)? The delegates matter or we could end up with social justice warriors, Klan members, national socialists, and members of violent biker gangs. The example is extreme, but the concern is well founded.
The application for the Convention of States goes a long way toward mitigating this hazard. The application language narrows the scope and only authorizes delegates to consider proposing amendments that “impose fiscal restraints on the federal government, to limit the power and jurisdiction of the federal government, and to limit the terms of office of federal officials and members of Congress.” Legislatures will also give “instructions” to the commissioners they nominate further restricting what measures they can entertain.
How do we know the delegates won’t go rogue? We don’t know, but history suggests they will abide by the restrictions placed upon them. During the 1776 Continental Congress and then again during the Constitutional Convention in 1787, some delegates returned to their legislatures to seek additional instructions because the motions exceeded their initial authority. Finally, if a commissioner failed to respect their limits, their state legislature could recall and replace them.
Morris claims the most likely commissioners will be the same politicians in Congress today who undermined federalism. There might be some, but state legislatures are more likely to send the Convention of States advocates from their own ranks. The convention will have no authority to award contracts, raise or spend money, or delegate power. They can only propose amendments and the commissioners will not be up for re-election. There are far fewer incentives for lobbyists to skew the process and less opportunity.
Ultimately, the greatest failsafe is ratification. For an amendment to be added to the Constitution, three-fourths of the state legislatures must vote to ratify. With 99 state house chambers in America, any 13 from different states could defeat an amendment.
In fact, ratification shows the fallacy of fear mongering about a runaway convention. If supporters of the “Newstates of America Constitution” enjoyed the political capital to ratify their new progressive nightmare of a constitution in 38 states, then they have more than enough clout to call a convention to propose their constitution. Or, they could just go directly to the states, ratify their new constitution, and nullify the Constitution in one step. This is as likely as the hypothetical Klan, NAZI, and biker gang constitution.
The progressives face insurmountable obstacles. Today, Republicans control the whole state government — governorship, state senate, and state house — in 23 states. Democrats control only seven. The GOP controls 33 state house chambers, 35 senate chambers, and the unicameral body in Nebraska.
Another valid question Morris raises is even if the Convention of States is successful, what will force the same politicians and bureaucrats to respect the new amendments when they violate the existing Constitution?
To date, most of the constitutional abuses are given cover by tortured court decisions, distorted interpretations of law, and other lawyerly tricks to obscure the actions of the offenders. However, cases like DC v. Heller and Citizens United v. FEC are recent examples where the political establishment accepted the constraints imposed by the Constitution. Convention of States advocates know the legal gimmicks activist judges use to circumvent original intent. Commissioners will frame amendments to counter the threat. As living authors, they will also be present, with their deliberation and debate notes, to oppose attempts by courts to re-define language opposite to the intended meaning.
The author only briefly considers the need for a convention to propose amendments. Our situation is perilous and our liberty hangs in the balance. Federalism is still the most effective system of representative self-government ever devised for securing liberty under the law, but our system was compromised slowly over many decades.
The carefully balanced powers providing checks on abuses were disrupted and the constraints were worn down by corruption. The federal government encroached and usurped state-level governance in almost every aspect of life. Congress created large bureaucracies and then shirked their legislative duty by giving bureaucrats the power of law via regulatory authority. The executive skirted ratification requirements by calling treaties ‘agreements,’ circumvented Congress by proclaiming presidential “actions”, and used political pressure to prejudice Supreme Court decisions.
While there are hazards in any course of action, there is also great risk in not acting. The concentration of power and corruption in the federal government threatens our liberty, security, and prosperity. The only solution is to divide, disperse, and properly balance power between the federal and state governments, the branches of the federal government, and to subordinate the Borg-like bureaucracies to accountable elected officials — in short, re-balance federalism.
How do opponents of the Convention of States, like Morris, propose to reverse the decay and confront the corruption? Their answer is to follow the same playbook — elect ‘better’ candidates and hold them accountable. After 80 years of failure, when people want to try the same failed strategy in the same corrupt system, with the same corrupt media, but promising different results, we need to ask: do they really want to solve the problem?
Advocates of the Convention of States offer a new strategy to re-establish equilibrium within our federal system. Texas Governor Greg Abbott proposed the Texas Plan to “restore the rule of law.” The Texas Plan includes language to prohibit Congress from regulating activity wholly within one state, requiring a balanced budget, revoking authority for bureaucrats to create federal law or pre-empt state law, and several other proposals to decentralize and disperse power. The changes will limit the ability of federal politicians and bureaucrats to engage in nefarious activities. If they persist, state legislatures will possess the authority to check their actions. There are still other good ideas and all of them will be analyzed and carefully considered at both the Convention of States and, if endorsed, in the subsequent ratification campaigns.
Any discussion of amending the Constitution warrants sober deliberation and respectful debate. Most advocates for a Convention of States welcome an open and civil dialogue on the hazards, challenges, opportunities, and benefits of a Convention of States to propose amendments.