A Constitutional Convention may be a bad idea.
I’m letting my good friend, Jeff Hymas–a Constitutional scholar, explain this one.
Red Flags about a Constitutional Convention, by Jeff Hymas, executive director of the Jackson Hole TEA Party.
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 amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
1) States Will Call the Convention: Article V clearly established that Congress will call the convention. The states can’t call the convention. All they can do is apply for it and once 2/3 of state legislatures apply for the convention, Congress “shall call” it. Article V says, “The Congress . . . on the application of the legislatures of two thirds of the several states, shall call a convention.” To be clear, Congress must call the convention (the word in Article V is “shall”) and the states can force that to happen but Congress is the entity calling the convention and are therefore in charge of setting the rules for it.
2) One State, One Vote: The question of how many voting delegates will be allowed from each state will be left to Congress since, according to the explicit language in Article V, they are in charge of calling the convention. (Letting the states decide on how many voting delegates they are going to send to the convention wouldn’t make any sense, since each state would use a different standard for selecting the number of voting delegates. For example, Wyoming would send one voting delegate using the standard of one state, one vote. California would send 55 delegates using the standard of the current number of Congressional delegates. Do small states like Wyoming really think that large states like California will be willing to only have one vote for their state when they have a population many times that of Wyoming? In accordance with the principles of federalism, only Congress can make the decision that the states themselves have no authority or ability to force upon one another. With Congress in charge of calling the convention, large population states – such as California with 55 delegates in Congress – would have all the votes necessary to ensure population is considered in the debate over delegate apportionment at the convention, thus eliminating the hope that each state would have one vote.
3) The Original Constitutional Convention Established One Vote per State: Another argument is that the original Constitutional Convention (and other conventions) established the precedent for conventions to operate under the rule of one vote per state. Prior to the Constitution, this was true. The states were in a loose confederation and were not bound together under a strong, established federal government. Each state had one vote at the Articles of Confederation convention because each state was sovereign and independent of the other states in the confederation. The product of the Constitutional Convention – the Constitution itself – established the strong federal government that, upon ratification, legally bound the states with the federal government (for explicit, defined purposes) and outlined how each state would be represented at the federal level where the issues that concerned all the states generally would be addressed. The Great Compromise was reached which established that states would be represented equally in the Senate (favorable to small-population states) and by population in the House (favorable to large population states.) The Constitution resolved the question of how many voting delegates would be allowed per state in matters of national concern (and this standard continues on to this day in our Congress and with our Electoral College). One vote per state was only the standard under the pre-Constitution era. Large states would have a pretty strong case in a convention operating under the rules of one vote per state if they claimed their equal suffrage (as decided upon in the Great Compromise and written into law in the Constitution) was being negated in contradiction to the supreme law of the land.
4) Delegates Are Restricted from Voting on Amendments Outside of the Subject of the Convention: This may be true for a State like Wyoming that has a Constitutional Convention bill. But delegates from other states may not have such restrictions. Article V says, “The Congress . . . shall call a convention for proposing amendments. . .” which clarifies that there is no limit on the amount or the subject of amendments proposed. Wyoming’s Constitutional Convention bill rightly acknowledges the possibility of a runaway convention with freedom-destroying amendments being proposed and makes provisions to control its three delegates from supporting such amendments (operating under the assumption that each state would receive the same number of voting delegates to the convention that they currently have in Congress). But Wyoming’s Constitutional Convention cannot control the other 532 delegates to the convention. And, it is not too much of a stretch to say that the great majority of those 532 delegates don’t see liberty the same way we do in Wyoming. So, could destructive amendments get proposed and supported in the convention? Yes.
5) Destructive Amendments Will Not Be Ratified, Because only 13 States are Needed to Prevent ¾ of States from Ratifying and We Know That the Majority of State Legislatures Are Republican and More Conservative Than Congress: First, the classic example of such an argument not holding water is the 17th amendment – changing from state legislature-appointed US Senators to popularly elected US Senators. The17th amendment was destructive of freedom because it robbed states of their representation at the federal level. It, too, had the same safeguard of only needing just a few states to not ratify it and yet it was ratified. Ironically, repealing the 17th amendment is one of the major focuses of supporters of an Article V convention. I agree with the goal of repealing the 17th amendment but I disagree with the method for doing so since a convention opens the door to all kinds of mischief. I think the proper way to repeal an amendment, like the 17th, would be to do so through Congress – not through a convention, just like what occurred with the 18th amendment. (The 18th amendment, prohibition, was repealed by the 21st amendment – an amendment which originated in Congress, not in a convention.)
Second, Article V explicitly states that Congress gets to choose between the two methods for ratification in the following terms, “as the one or the other mode of ratification may be proposed by the Congress.” State legislature ratification is one method. The other method is ratifying conventions. With the 21st amendment, Congress didn’t feel like they could count on state legislatures to ratify the amendment so they proposed the second method of special ratifying conventions and the 21st amendment passed. The lesson to be learned is that Congress can go outside the existing state legislatures so counting on them to not ratify destructive amendments isn’t sound logic.
Third, the current standard for ratification is ¾ of the states – or 38 states. What if the delegates to the convention were convinced that for the benefit of having more state control over the federal government the bar should be lowered to 51% – or 26 states? Has something like that ever happened before? Yes. The original convention had standing rules of unanimity (or 13/13 states) to change the Articles of Confederation. The Constitution lowered the bar from 13/13 to 9/13 states. Could that happen again? Yes.
6) Safeguards are in Place so That the Article V Convention Will Not Be a Runaway Convention: The only convention we’ve had was, by definition, a runaway convention – it did more than it was authorized to do. Many delegates were authorized only to revise the Articles of Confederation. The Founders revised them to the point that they became an entirely new document. Luckily we had men of virtue and honor in the convention. They then sent the Constitution back to the states for them to ratify it and to authorize the work they weren’t originally authorized to do. The states did so. The historical precedent has been set. The same thing could happen with a convention today. It could exceed its original purpose and get authorization for what it wasn’t originally authorized to do. And, as explained above, there are not sufficient safeguards in place to ensure otherwise.
In summary, I like that Wyoming’s Constitutional Convention bill is trying to provide for a safeguard against a runaway convention but because of the issues listed above I believe the only way to truly prevent a runaway convention is to not call one in the first place. I don’t think there is any mal-intent on the part of the supporters of Wyoming’s Constitutional Convention bill but I do believe there are some unintended consequences with Wyoming’s Constitutional Convention bill and that it is dangerous because it tries to provide the assurance that with enough safeguards in place within the State of Wyoming we can safely call for a convention. If a convention were called, we could be assured that changes would be made to our Constitution but we couldn’t be assured that they would be changes for the better.
One final thing; If the Congress and the Courts aren’t obeying the Constitution now, why would they obey one or more Amendments passed in a Constitutional Convention?