Does the United States need a new Constitution?
Should the states hold a new Constitutional Convention?
With the recent failure of a vote in Ohio, and Virginia next in line to vote, the prospect of a second Constitutional Convention has alarmed some commentators. As noted by Chuck Baldwin on January 13, only two more states are needed to call a new convention.
Our first Constitutional Convention, in 1787, produced our existing Constitution. It was also our last Constitutional Convention. Nevertheless, Article V of the Constitution has always allowed for a new convention to be called by the states, as part of the amendment process.
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution,” says Article V. So far in our history, amendments have always been handed down by Congress for ratification by the states.
But Article V does allow another method of amending the Constitution: “[O]r, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments …”
So, if 34 states request a new convention, Congress is required to call one.
Amendments, “which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution,” says Article V, “when ratified by the Legislatures of three fourths of the several States”—one method of ratification—“or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress …”
As we shall see, Article V does not begin to cover all the possibilities.
Whom to Ask?
Is a new Constitutional Convention something to be afraid of? Would it result in the demise of the Constitution, written by our country’s founders, that has served us for 222 years? Could we find ourselves saddled with a new constitution—some abomination, perhaps, drawn up by the likes of William Ayers, Oprah Winfrey, Al Gore, and Rosie O’Donnell?
If it’s such a terrible idea, why did our founders include it in the original Constitution?
But if it’s such a good idea, why has it never been done?
In an effort to find out the pros and cons of convening a new convention, Chalcedon talked to three players in the game:
- Bill Walker of Seattle, former newspaper publisher and co-founder of Friends of the Article V Convention (FOAVC, see www.foavc.org), and a proponent of the “ConCon.”
- Phyllis Schlafly, head of the Eagle Forum (www.eagleforum.org), best known for her national leadership in stopping the Equal Rights Amendment (ERA) during the 1970s.
- Tom DeWeese, with the American Policy Center (www.americanpolicy.org), who was instrumental in mobilizing opposition to the recent ConCon vote in Ohio. In the face of opposition, that vote was not held.
First, said Walker, the procedure is in Article V of the Constitution and always has been. “Congress has a constitutional obligation to call a convention if 34 states apply for it,” he said. “Congress does not have the right to veto the Constitution. If they have the right to veto Article V, they have the right to veto any article.”
From the beginning, he said, states have applied to Congress to call an Article V convention—so that amendments proposed by the states might be considered, if they have been ignored in Congress. To date, he said, there have been more than 650 applications made to Congress by the legislatures of all 50 states.
“We are not looking to write a new Constitution,” Walker said. “These would only be amendments to this Constitution—amendments proposed by the states, followed by the ratification process in all the states.”
On one of FOAVC’s websites, the Article V convention is described as “the ultimate populist political weapon.”
“It is a right of the people. It is a check and balanced designed to enable the people to alter the national government to confine the excesses of government or to improve its deficiencies.”
Most of the applications for amendments, Walker said, have to do with proposals to limit Congress’ power—a Balanced Budget Amendment, term limits, repeal of the 16th Amendment (authorizing the federal income tax), the line-item veto, rules of legislative apportionment, etc. Congress has never shown any inclination to subject itself to a balanced budget or term limits. Without an Article V convention, Walker asked, how would such amendments ever come before the people for a vote?
“In our history, according to The Congressional Record, some 10,000 constitutional amendments have been proposed to Congress—with only 27 of them ever finalized,” he said. “An Article V convention wouldn’t be any different. You’d have a lot of proposals going in, and very few coming out.
“At the convention, there would be a battle over every amendment proposed. Remember, it only takes 14 states to defeat any amendment.
“This is not something that someone can just sneak through in the middle of the night. You couldn’t, for instance, repeal the Second Amendment [the right to bear arms] unless repeal was overwhelmingly supported by the American people.”
So the ratification process would ensure that no proposal coming out of a ConCon would become an amendment to the Constitution without the strong support of the whole citizenry.
But who would serve as delegates to the convention?
The U.S. Supreme Court, Walker said, has ruled that elected representatives of the people currently in office would not be eligible to serve as delegates unless they first resigned their office. Every state would elect its own delegates, he said, according to eligibility standards that already apply to election to any other public office.
“Do you know,” he said, “that since 1787 there have been some 700 conventions held to amend state constitutions? Those were all managed quietly and unobtrusively.”
It all sounds calm and reasonable enough. But there’s no guarantee a ConCon would play out calmly and reasonably, say critics.
“Once a ConCon is called, it becomes its own master,” Phyllis Schlafly said. “It’s a terrible idea, and very dangerous. We already have a great Constitution that has withstood centuries, and we don’t need another one.”
She pointed out that the original Constitutional Convention, authorized by the Continental Congress under the Articles of Confederation, proceeded immediately to exceed or ignore its instructions, devise its own rules, and then wound up replacing America’s form of government—using ratification standards (a two-thirds majority of the states) different from those laid down by the existing government (100 percent of the states).
Guided by the 1787 precedent, she said, “The rules of ratification could be changed in midstream. We saw the same thing happen with the ERA. They kept losing, so they kept changing the rules. I have no desire to fight a battle like that again.”
“It’s not that I’m opposed in principle to an Article V convention,” Tom DeWeese said. “But can you imagine a worse time to try to hold one?
“The atmosphere today is so bad, so hypercharged politically, that I fear what a ConCon might do. Article V, unfortunately, doesn’t give any firm guidelines for what to do.”
DeWeese and Mrs. Schlafly painted a grim picture of demonstrators clashing in the streets outside the convention hall, passions fueled by incessant leaks to the media and sensational reporting, dissatisfied delegates litigating every difference of opinion, and special interest money pouring in, in an attempt to direct the convention’s outcome.
“Some of the proposals in question, like a Balanced Budget Amendment, are good ideas,” DeWeese said, “but the method is too dangerous.
“I’m not sure a ConCon is the only way to curb Congress. Our side has to do a better job of getting its message to the American people. If we really want a Balanced Budget Amendment, then we have to do a better job of pressuring the Congress for it.”
“If you don’t have popular support for an amendment,” Mrs. Schlafly said, “it isn’t going to pass anyway, whether or not you hold a ConCon.
“But it would be the biggest media event in our lifetime, and it would be uncontrollable—for instance, there are no hard-and-fast rules for how delegates would be chosen. It would be a gold mine of litigation, so you’d have activist courts stepping in again and again to decide important issues.
“A ConCon would be primarily a fundraiser for people who want change. There are a lot of people, a lot of ‘intellectuals,’ who don’t like our form of government. They want a European-style parliamentary government.”
Some hint of this discontent creeps into the FOAVC website. The theme of many of the postings is that an entrenched political class has usurped the sovereignty of the American people, and “the people” must take back their power.
In a poll offered on the site, it is proposed to “restore American democracy” by replacing the Electoral College with a straight popular vote, providing for the recall of the president and curbing his power to veto legislation, and outlawing all private financing of political campaigns, allowing “total public financing” only.
Needless to say, such innovations would radically alter our country. And handfuls of high-population “Blue” states would dictate forever to all the other states, who would thus lose the last vestiges of state sovereignty allowed for by the Constitution. Our system of checks and balances would be wrecked by destroying the power of the executive branch: would any president ever complete a term, if he could be recalled at any time?
Walker has distanced himself from these and other positions taken on the FOAVC website (“They’re only the personal opinions of the people who posted them”); even so, their presence does lend weight to Mrs. Schlafly’s warning that some of ConCon’s backers don’t like America’s republican form of government and would like to replace it with some other form.
“We can’t trust the ratification process,” Tom DeWeese said. “It could be changed. What if they decided a vote of the states would not be needed to ratify anything the ConCon did? What if they decided to ratify by a straight nationwide popular vote? What if a simple political majority in Congress decided to ‘spare’ the people the expense and trouble of a long, drawn-out ratification campaign, and gave themselves the authority to ratify?
“I’m just not ready to take a chance on that.”
Can States Change Their Votes?
To date, 22 states have voted to call for an Article V convention, and 18 states have not yet voted to do so.
Another 10 states have voted for a ConCon but have since rescinded their votes. This complicates matters because it is not definitely known whether a state has the right to rescind its vote. ConCon opponents say no because that would give one state the power to nullify the actions of the other 33 states on the list. Opponents point out that 10 states, not one, have voted to rescind.
If only because of the confusion over that issue alone, it is not likely that a ConCon will be held anytime in the foreseeable future. The moment the 34th state got aboard, the 10 states in question would fight for their right to change their vote. That fight would involve extensive, time-consuming litigation that would ultimately be ruled on by the Supreme Court.
But if a ConCon were to be called, there would then be eternal disputes and court cases over the rules for selecting delegates; and if that obstacle were finally overcome, and the convention actually convened—well, Tom DeWeese and Phyllis Schlafly are right. It would be the biggest media circus ever.
With no hope whatsoever of keeping its deliberations secret, as the 1787 convention managed to do, the ConCon would generate an infinite series of alarmist news reports, inflamed editorial commentaries, hard feelings all around, and maybe, before long, civil strife and riots in the streets.
And yet for all that prodigious effort, there is still no certainty that any amendment would ever emerge from the ConCon for a vote. With special interests pressuring the delegates, and a steady stream of delegates running to the courts, the ConCon might not even be able to decide how to release an amendment for ratification.
It seems like a great deal of trouble to go to, and a risk to take, for an enterprise that shows little promise of any profitable return.