A new constitutional convention: The right’s worst idea

Once a fringe notion, the idea that the United States is in dire need of a new convention to revisit the Constitution is becoming increasingly mainstream. Bizarrely, it is not America’s perpetually aggrieved left-wing Europhiles, who are forever lamenting the obstacles to the centralization of power codified in the American system over 200 years ago, that are demanding a new convention. The idea that America’s founding document is in need of a top-to-bottom review has taken hold among those who ostensibly revere the Constitution as it was written: American conservatives.

“Legislators in 27 states have passed applications for a convention to pass a balanced budget amendment. Proponents of a balanced budget requirement are planning to push for new applications in nine other states where Republicans control both chambers of the legislature,” The Washington Post reported this weekend. “If those applications pass in seven of the nine targeted states, it would bring the number of applications up to 34, meeting the two-thirds requirement under Article V of the Constitution to force Congress to call a convention.”

The Post immediately identified the obvious pitfalls associated with this plan. The foremost among them for conservatives being the fact that participation in a constitutional convention will not be limited exclusively to those Americans who share their political values. Liberals, too, will be inclined to litigate their cultural and legal grievances with the system at this convention. Secondly, the scope of such an affair is likely to broaden extensively in relatively short order. A balanced budget process will quickly become the least pressing priority for the conventioneers. Finally, the Founders were so vague as to how such a gathering would operate that it could easily spiral out of the control of those in attendance, and that has the potential to usher in a very real and potentially violent constitutional crisis.

The problem is that while the Constitution allows amendments to be adopted and sent to the states by a two-thirds vote of both the House and Senate, or by a national convention called by two-thirds of the states, the founding document is silent on how such a convention would operate. How many delegates each state would receive, the rules under which a convention would operate and who would set the agenda would be left up to Congress – all of those would be open questions.

Most worrying to some who oppose the convention: There’s no indication that a convention could be limited to just one topic. Hypothetically, delegates could take up any issue they wanted, from reinstating Prohibition to eliminating the direct election of senators. More extreme scenarios envision delegates revisiting the 13th Amendment, which banned slavery, or inserting corporate giveaways into the Constitution.

“There’s no authority establishing in the Constitution above that of a convention. If you call a convention, what you’re doing is opening up the Constitution to whatever the delegates want to propose,” said Michael Leachman, director of state fiscal research at the Center on Budget and Policy Priorities, the center-left think tank that has opposed calls for a convention since the 1980s.

The Post’s hyperventilation here is silly. To equate slavery with the repeal of the 17th Amendment is to confess an embarrassing lack of perspective. There is no constituency today for the reposition black slavery, capital “T” total temperance, or any of the other tragically flawed ideas that were once enshrined in the Constitution. A variety of American constituencies do, however, exist today that favor retributive justice over domestic tranquility. As The Post implies, these dangerous groups would demand and receive their seat at the table.

For those who are interested in the mechanics of how calling a convention pursuant to Article V of the Constitution would function, The Congressional Research Service’s Thomas Neale has done some interesting work. He observed that the amendment process, which has been used successfully 17 times in the past to amend the American charter, is distinct from a convention in that these amendments originated in the Congress. Historically, amending the Constitution has been a top-down process. Today, an organic groundswell of disappointment in Washington is buoying a movement that could force modifications to the Constitution from the bottom up.

Conservatives who believe the wind is at their back here as more and more states sign onto the notion of a convention in order to address persistently unbalanced budgets might find their footing is not as sure as they think. The National Constitution Center’s staff observed that it’s entirely possible that, even if the pro-convention forces secure the endorsement of two-thirds of the states, it’s not clear that they would maintain that support for very long. “For starters, some states could rescind their amendment applications as the quorum number gets closer to 34 states,” The NCC noted. “Maryland is a Democrat-controlled state that has an active Balanced Budget petition, for example. And then [there] are big questions about how the 535 members of Congress would handle the convention process.”

One immediate problem would be how Congress would acknowledge of the acceptance of the petitions as meeting the Article V requirement. Critics have pointed out that not all of the petitions have the same wording. Another issue would be the type of conventions called by Congress for the nomination and then ratification of an amendment or amendments.

Despite trying 22 times between 1973 and 1992, Congress wasn’t able to approve legislative rules for a constitutional convention process. In the scenario of a balanced-budget amendment convention, Congress would need to establish who can attend the convention to finalize the wording of a single amendment – or if such a convention can propose multiple amendments.

For conservatives who ostensibly venerate the Constitution, it is odd to see so many of them fail to acknowledge that proposing it’s complete revision undermines their political position dramatically. Displaying respect for the Founders’ ideals and creating the conditions whereby their work might be entirely demolished are mutually exclusive.

Many on the right have contended that a Convention of States is distinct from a constitutional convention. What’s more, they might say, that process could be the only way to rein in the unelected elements of the federal government, like the judiciary or the nation’s unwieldy and proliferating regulatory agencies. Some on the right contend that the Constitution has been so perverted that it is already essentially defunct. But these same conservatives, who often lament the fact that Republican lawmakers are so regularly rolled by left-wing organizations and liberal politicians, would be foolish to vest in these GOP officeholders the authority to remake the system entirely. They would quickly find that conservative politicians who regularly fail to outmaneuver liberals in Congress don’t find their luck has improved on the convention floor.

From a conservative perspective, the ideals and priorities of those who came of age in the Enlightenment are vastly superior to the self-obsession that masquerades as political principle today. The document that emerges from a modern convention would not look anything like the 18th Century accord that harnessed human imperfection and utilized one man’s basest impulses to check another’s. That divinely inspired document, while perhaps flawed and frequently misinterpreted, remains preferable to the technocratic, anti-federalist charter that would emerge from a 2015 convention (presuming that anything at all could possibly pass such a body).

When liberals like Justice Ruth Bader Ginsburg gush over national charters like South Africa’s 19-year-old constitution, they are often only fetishizing the new and the foreign. That’s a nagging and unattractive trait that conservatives laudably fail to entertain. The right’s frustration with the current state of affairs cannot be satisfied by attempting to change the rules of the game. To convene a Convention of States is to open a Pandora’s Box. The Founders understood that forthcoming generations might one day look favorably upon monarchy again, and they crafted a system to keep those shortsighted counterrevolutionaries in check. It would be the gravest of follies to undo their work, no matter how frustratingly supine the Republican Party has become.

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