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August 2016 Policy Study, Number 16-2

   

Restoring Constitutionalism, Federalism, and Solving our National Fiscal Crisis: The Possibility of an Article V Convention of the States

   

Are We Headed Into Uncharted Waters?

   

 

Conservatives and libertarians can be divided on many policy-related issues. This past Republican presidential primary contest is one recent example, but the idea of an Article V convention of the states has also caused disagreement. Some fear that an Article V convention of the states is too risky and that it would lead to further undermining of the Constitution. In other words, a convention could be taken over by progressives who would make fundamental changes, not just in economic policy, but in other areas, such as destroying the right to keep and bear arms granted by the Second Amendment.

 

Historically, there have been conventions of the states that met to discuss specific issues, but this was before the ratification of the Constitution in 1787. Randy Barnett notes that such conventions “were almost always limited to specified subjects.”[61] For example, “the agenda for the 1781 interstate convention held in Providence, Rhode Island was limited to military supplies for a single year.”[62] Since ratification of the Constitution, the document has been amended 27 times, and this has occurred without a convention of the states. John G. Malcolm, who is the Director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, wrote that “over the years many states have submitted applications for Congress to call an Article V convention on a variety of topics,” but either not enough states joined the effort or Congress decided to act before a convention could be called.[63]

 

Malcolm also argued that an Article V convention raises many questions:

 

The process specified in Article V for a convention to propose amendments raises many questions that require careful consideration. Questions arise concerning how such a convention would work, what types of amendments it might produce, and whether some of the proposed amendments would successfully rein in the federal government and reinvigorate federalism.[64]

 

For example, Malcolm states that “some prominent scholars contend that a ‘Convention for proposing amendments’ is just that — a convention to propose amendments, any amendments, for the convention delegates to consider… .”[65] Advocates of an Article V convention of the states argue that the aim of such a convention can be limited, but this would be a point of debate. Convention of States supporter Robert Kelly argues that a convention can be limited because of the nature of Article V. As Kelly argues:

 

The text of the Constitution itself clearly indicates that a convention can be limited in at least some ways. For instance, a convention under Article V is limited to ‘proposing amendments.’ It is essentially a recommendatory body: it cannot ratify its own proposals. Thus, even an ‘unlimited’ convention is limited in this critical respect, which prevents rash or unpopular amendments from becoming part of the Constitution. Further, Article V specifies that certain topics are off-limits for a convention (and for Congress) to consider. The last portion of the article takes certain provisions relating to the import of slaves off the table until 1808, and forbids any amendment that deprives the states of equal representation in the Senate. There can be no question that certain topics are off-limits for a convention, since Article V itself imposes those limitations. That state legislatures may further limit the authority of a convention is shown by the historical practice and purpose behind Article V.[66]

 

Kelly further argues that an Article V convention of the states can be limited because “state legislatures can impose binding subject-matter restraints on the convention to ensure that it does not run away.”[67]

 

Those who have concerns about a possible Article V convention of the states argue that not only are there many unanswered questions, but the fears of a runaway convention should not be dismissed outright. To a certain extent, these concerns are valid because delegates who went to Philadelphia in 1787 thought they were going to revise the Articles of Confederation, and the end result, which was much better, was an entirely new Constitution. “A runaway convention is not merely a theoretical possibility, but could easily arise, as the runaway Philadelphia Convention of 1787 illustrates,” noted constitutional scholar Michael B. Rappaport.[68]

 

Walter Olson, a Senior Fellow at Cato Institute’s Center for Constitutional Studies, wrote:

 

Some respected scholars who favor a convention argue that strict instructions would deter the assembled delegates from venturing beyond the velvet rope. But if that cannot be made a legal requirement, it winds up more like an honor code… It says not a word expressly authorizing the states, Congress, or some combination of the two to confine the subject matter of a convention. It says not a word about whether Congress, in calculating whether the requisite 34 states have called for a convention, must (or must not) aggregate calls for a convention on, say, a balanced budget, with differently worded calls arising from related or perhaps even unrelated topics. It says not a word prescribing that the make-up of a convention, as many conservatives imagine, will be one-state-one-vote (as Alaska and Wyoming might hope) or whether states with larger populations should be given larger delegations (as California and New York would surely argue).[69]

 

“Does Congress, or perhaps the Supreme Court, get to resolve these questions — the same Congress and Supreme Court that the process is aimed at doing an end run around?” asked Olson.[70]

 

Michael Rappaport also argues that a runaway convention might occur under a variety of scenarios:

 

A runaway convention might arise in various ways. First, the states might apply for, and Congress might call, a limited convention, but then the convention might pro­pose an amendment that ignores the limitation and instead proposes a nonconforming amendment. Second, the states might apply for a limited convention, but Congress might believe that limited conventions are not constitutionally recognized. Yet, Congress might mistakenly interpret one or more of the state applications as applying for an unlimited convention in the event that Congress concluded that limited conventions were unconstitutional. Finally, the states might apply for a limited convention, but Congress might be unable to agree on whether there are limited or unlimited conventions. Congress might then simply call for a convention without specifying the type of convention. The convention itself might then decide that it is an unlimited convention. There are, no doubt, other possibilities.[71]

 

Phyllis Schlafly, the first lady of the American Conservative movement and founder of Eagle Forum, has also raised concerns for an Article V convention of the states. Schlafly argues that supporters of an Article V convention “are fooling themselves when they suggest that Article V creates a path to bypass Congress with a ‘convention of the states.’”[72] Schlafly further argues:

 

The only power the states have under Article V is the opportunity to submit an ‘application’ (petition) humbly beseeching Congress to call a convention. Hundreds of such applications have been submitted over the years, with widely different purposes and wording, many applications were later rescinded, and some purport to make the application valid for only a particular amendment such as a federal balanced budget or congressional term limits. Article V states that Congress ‘shall’ call a convention on the application of two-thirds of state legislatures (34), but how will Congress count valid applications? We don’t know, and so far Congress has ignored them anyway. If Congress ever decides to act, Article V gives Congress exclusive power to issue the ‘Call’ for a convention to propose ‘amendments’ (note the plural). The Call is the governing document which determines all the basic rules such as where and when a convention will be held, who is eligible to be a delegate (will current office-holders be eligible?), how delegates will be apportioned, how expenses will be paid, and who will be the chairman. Article V also gives Congress the power to determine whether the three-fourths of the states required for ratification of amendments can ratify by the state legislature’s action or by state conventions.[73]

 

Schlafly also brings up questions in regard to how delegates at a possible Article V convention would be apportioned and whether or not it would be certain if each state had one vote.[74] As Schlafly argues:

 

The most important question to which there is no answer is how will convention delegates be apportioned? Will each state have one vote (no matter how many delegates it sends), which was the rule in the 1787 Philadelphia convention, or will the convention be apportioned according to population (like Congress or the Electoral College)? Nothing in Article V gives the states any power to make this fundamental decision. If apportionment is by population, the big states will control the outcome. Article V doesn’t give any power to the states to propose constitutional amendments, or to decide which amendments will be considered by the convention. Article V doesn’t give any power to the courts to correct what does or does not happen.[75]

 

In addition, Phyllis Schlafly argues that even if an Article V convention followed the model of Philadelphia Convention of 1787, she doubts if the deliberations would be kept in secret as they were by the Founding Fathers. “If we follow the model of the 1787 Convention, will deliberations be secret? Are you kidding? Nothing is secret anymore,” writes Schlafly.[76] Phyllis Schlafly is correct on this point because a constitutional convention is bound to attract a lot of attention from a variety of interest groups who are just waiting to get their agendas placed into the Constitution.

 

Columnist George F. Will countered this argument made by Schlafly and others who are suspicious of an Article V convention when he wrote:

 

Article V says Congress has no discretion — it ‘shall’ call a convention ‘on the application of the legislatures of two thirds of the several states.’ A convention called in accordance with the institute’s compact would adopt its limited agenda with the force of federal and state law, any deviation from which would render the convention — which is limited to a 24-hour session — void. The compact designates as the sole delegates to the convention the governors of participating states, officials who will not run the political risk of wrecking the convention by ignoring the law.[77]

 

In addition, Will argues that under an Article V convention the states “would closely confine a convention: State Legislatures can form a compact — a cooperative agreement — to call a convention for the codified, one-item agenda of ratifying the balanced budget amendment precisely stipulated in advance.”[78]

 

Randy Barnett argues that an Article V convention is “not a ‘constitutional convention,’ but is more properly called an ‘amendments convention.’”[79] As Barnett explains:

 

It is a convention of the states, subject to the rules established for its operation by the states themselves. There was a long history of such conventions in the United States before the Constitution, of which the Framers were well aware when they inserted this express power of state legislatures. And such conventions were almost always limited to specified subjects.[80]

 

Attempting to dismiss the fears of those who worry about a runaway convention, Barnett argues that the Constitution places a check on an Article V convention. “The ultimate check on the power of a convention of the states is that the Constitution limits it to ‘proposing amendments.’”[81] Barnett writes:

 

Whatever it proposes must then be ratified by the legislatures of three-quarters of the states, just like an amendment proposed by Congress. This means that one house in a mere thirteen states can block the ratification of any amendment proposed by a convention of the states. Such an assembly would provide the deliberation needed to craft a package of reforms that can obtain the approval of thirty-eight state legislatures.[82]

 

Barnett argues that this should calm the fears of those who are suspicious of an Article V convention because “three-quarters of the states must ratify any proposal emerging” from a convention, and that will be difficult, as the history of attempts to amend the constitution have demonstrated.[83]

 

In response to the fears of a runaway convention, Governor Greg Abbott wrote:

 

It is true that Article V does not expressly authorize States to limit conventions to particular issues — but the problem for would-be critics of the Texas Plan is that Article V also does not require general and open-ended conventions. Indeed, that is by design. As noted above, the whole point of the second path for proposing amendments was to empower States to propose amendments to the Constitution. In adopting that second path, the Framers agreed with George Mason that the States should have constitutional redress when the federal government overstepped its bounds. And nothing that Mason (or his fellow Framers) said would suggest that the States were somehow limited in how they exercised that power to defend their prerogatives against a federal government. To the contrary, James Madison specifically noted that the Constitution was silent on the issue, and he argued that that silence was good and necessary to preserve the States’ flexibility. In Madison’s words, ‘Constitutional regulations [of such matters] ought to be as much as possible avoided.’[84]

 

Governor Abbott also noted that the Virginian and Patriot Patrick Henry, who was an Anti-Federalist, argued “that the States’ power to amend the Constitution did not go nearly far enough to protect the people from an overbearing federal government.”[85]

 

The other concern is not just with the procedures of a possible Article V convention of the states, but of the difficulty of initiating such a convention. An Article V convention has never been tried before, which is one of the main reasons why there is so many questions and concerns. But with that said, it will also take two-thirds of states to agree. This will be difficult in today’s very divisive political climate. As Walter Olson wrote:

 

One reason is that after advocates get the process rolling by convincing two-thirds of states, or 34, itself a fairly demanding number, the amendments that emerge from a convention do not get ratified unless three-quarters of states ratify, or 38, a quite demanding number. Put differently, it takes only 13 states to refuse to act to kill any of these ideas, bad or good, in the end.[86]

 

Walter Olson also brings up another point that is often forgotten in regard to federalism. Although Governor Greg Abbott and other conservative state Governors are correct in the need to restore traditional federalism back to the states, there are some states who will oppose this because of the influence the federal government has established over the states in regard to federal dollars.[87] As Olson explained:

 

Whether in spending programs, regulations, subsidies, you name it, almost every big expansion of federal power has been skillfully designed as a deal that cuts state political elites into some of the resulting flow of power and money —consider, for example, how state education, police, road, and environmental departments have come to depend on Washington’s largesse.[88]

 

Because of the many unanswered questions and concerns about a possible Article V convention of the states, some scholars have advocated reforming the amendment process itself. As Michael B. Rappaport wrote:

 

Article V should be reformed to allow two-thirds of state legislatures to propose a constitutional amendment which would then be ratified or rejected by the states, acting through state conventions or state ballot measures. Such a return of power to the states would mitigate against our overly centralized government by helping to restore the federalist character of our Constitution.[89]

 

The debate surrounding an Article V convention of the states is a worthy discussion, and it is worth the time for the Iowa Legislature to debate and consider this important issue. With that said, any move toward an Article V convention of the states should be made with caution and prudence. Our country is at a fundamental crossroads from both an economic and cultural standpoint. We are deeply divided, and a constitutional convention, even if it had a specific agenda, would draw the attention of numerous advocacy groups from across the political spectrum. For example, liberals and progressives also have their own economic and social goals to achieve through a constitutional convention.

 

The battle to restore constitutional government and defend the Founders’ Constitution is a worthy and moral cause, and it is the great crusade of the 21st century. Governor Greg Abbott makes a persuasive point in arguing in favor of the Article V convention and the Texas Plan, writing:

 

The benefits of the Texas Plan are many because any change effectuated by an assembly of the people will force the federal government — whether in big ways or small — to take the Constitution seriously again. And the downsides of such an assembly are virtually nonexistent, given that any change to our Constitution’s text requires such overwhelming nationwide support. The only true downside comes from doing nothing and allowing the federal government to continue ignoring the very document that created it.[90]

 

Governor Abbott is correct that we cannot afford to allow the federal government to continue to ignore the Constitution, but the fight is not just in changing Washington, D.C. As Walter Olson noted, many states have become addicted to federal money as a result of federalism being undermined by an ever increasing and powerful federal government. In addition, there is a cultural problem.  As mentioned already, it is not just politicians who are not following the Constitution. There is a crisis within the American people, who have forgotten and who are outright ignorant of the Constitution. In order to restore constitutional government, we need to see a cultural reformation among the American people. As Claes Ryn argues:

 

Many defenders of the old American Constitution seem to think that all that would be needed in order to save the Constitution would be to persuade Americans of the correct interpretation of the Framers’ intent. These ‘constitutionalists’ live in a world of abstractions, a dream world of their own…[91]

 

Restoring constitutionalism in the United States, as Ryn argues, will only occur when “Americans, from leaders to people in general” begin “to revive or freshly create something like the older type of morality and to start living differently,” governed by the principles of the American Founding.

 

   

 

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