In the face of a government that has become highly corrupted by the influence of moneyed interests, many think holding a convention to amend our Constitution would be the most promising mechanism of reform. At first glance, this makes a great deal of sense: the scenario in which we find ourselves — at the mercy of a legislative process administered by elected “representatives” who are unresponsive to popular will or public interest — seems to embody exactly what our founding fathers hoped to protect against by including in our Constitution the people’s power to amend it.
But while a constitutional convention might be an elegant solution to our problems, legally and theoretically speaking, in the context of our current political reality, it is not the most practical avenue of reform.
Primarily, this is because of the way a constitutional convention must be initiated. According to Article V of the Constitution, which concerns amendments, Congress must call a constitutional convention if two-thirds of the state legislatures petition it to do so. Leaving aside the fact that two-thirds amounts to 34 states, an ambitious number, it is crucial to emphasize that the call for a convention must be initiated by the states’ legislatures, not their citizens.
To put it bluntly, what this means is that reforming our corrupt electoral system by way of a constitutional convention requires us to depend on people who themselves came to power via corrupt electoral systems. When the framers wrote Article V, they surely expected state legislatures to be much more immune to corruption than Congress, by virtue of their closer proximity to the citizenry, making them reliable barometers of when the Constitution needed amending.
The unfortunate reality is that today, the vast majority of state legislatures aren’t much more representative than Congress itself; indeed, state legislators share the congressional appetite for big checks from wealthy special interests. And lest we forget, service in the state legislature is oftentimes a launching pad for congressional campaigns.
So what is it exactly that makes us think our state legislatures will square off against moneyed interests to stand up for the people?
For the sake of argument, let’s imagine that 34 state legislatures are willing to call for a convention. There’s an even larger obstacle still standing in our way: any proposed amendment must be approved by three-quarters (38) of the states.
To be clear, this problem runs deeper than merely having to win the support of an additional four states. In short, there’s a very good chance that even some of the states originally calling for a convention wouldn’t approve of its proposal.
Here’s why: While it’s generally accepted that, in order for Congress to call a convention, there must be (at least loose) agreement among the petitioning states with regard to the topic to be addressed by a convention, once a constitutional convention is called, it’s not at all clear that its scope can be limited to said topic, since at that point the matter is out of the hands of Congress.
So basically, there’s a very real possibility that a constitutional convention will result in a proposed constitutional amendment that drifts from the states’ original convention-calling intent. This is why so many people are scared of constitutional conventions: they’re afraid the convention will overreach its intended scope.
In reality, though, this isn’t why we should be scared — at least not those of us who share a will for reform. We should be scared of a convention because, looking realistically at the way our politics work, an amendment that drifts even slightly in scope from what the states originally called for will be rejected by the states. And considering the nature of political dialogue and compromise, scope drift is probable, meaning that so too is the refusal of states to approve a convention’s proposal. The result: a whole lot of democratic energy (i.e., the energy it took to get us to the point of calling a convention) down the drain.
But again, for the sake of argument, let’s imagine that a convention is called and it proposes an amendment that’s perfectly reflective of the 34 states’ original intent in calling it. There are two reasons why there’s still a very real likelihood that the amendment won’t get approved.
One is that we would have to win the support of an additional four states, and that’s no easy task. But a more substantive reason is that, for every single one of the 38 states whose approval we’d need, again, it’s not the people of those states who’d be approving it.
There are two ways a proposed amendment can be approved by the states, and Congress gets to choose between them. One is by the state legislatures. I’ve already discussed why this is problematic, but it would be even more problematic at this stage of the game. When a state legislature calls for a convention, it’s nothing more than a symbolic gesture. Its members aren’t committing to anything; they’re paying lip service to an idea.
On the contrary, when it comes time to approve a proposed amendment, state legislators stand to alter the law of the land, which they know will ultimately come back around to affect them. In short, it’s the difference between making a campaign promise and actually voting to pass a bill. Like voting to pass a bill, approving a proposed amendment is where the rubber meets the road, and it’s safe to say that a substantial number of state legislators — even those who supported calling a convention — aren’t going to be willing to do it. Of course, they’ll hang their hat on technical reasons why not, but at the end of the day, it will be because it’s just not in their interest.
The other way a proposed amendment can be approved by states is through state conventions called specifically for the purpose of deciding whether or not to grant approval. Initially, this seems like a more hopeful option, but it’s really not. Each state has its own rules about how a state convention would come into being. For some, it would just be members of the state legislature. At the other end of the spectrum, some states would hold a special election of delegates, for which any citizen would be eligible to run. This sounds exciting, but here’s the catch: you can bet your bottom dollar that wealthy donors will come out of the woodwork to influence the outcome of any election like this. They’ll do everything in their power to make sure a convention is packed with delegates who will come to the table ready to do their business.
The moral of all of this: Even if we succeed in calling a constitutional convention, which would be no small feat, there’s a good chance that whatever comes out of it will never be approved.
Now, for some people, the point of advocating for a constitutional convention isn’t actually to make a convention happen; it’s to get enough states to call for a convention that a credible threat is produced, thereby scaring Congress into passing an amendment itself. I used to belong to this school of thought. Lately, though, I’ve really come to question it. Here’s why: First and foremost, a credible threat will still be absurdly hard to produce. Consider the fact that 17 states have called for a convention to pass a balanced budget amendment. Has anyone seen realistic action toward a balanced budget amendment?
Part of what makes any action Congress has taken less than realistic is that, to pass an internally proposed amendment, there needs to be consent among two-thirds of both the House and the Senate. At a time when we can’t even get bills promoting better disclosure to overcome a filibuster in the Senate (which is a lower threshold to overcome than two-thirds!), we’re never going to see real, substantive reform of our electoral system pass a floor vote.
But here’s a much more serious flaw in the “credible threat” strategy: Is an amendment written by Congress really what we want? When was the last time Congress passed truly good legislation? Won’t whatever they produce just be watered down and loophole-ridden? The whole point of our movement is that we need reform because we can no longer trust Congress. Why should we trust them to rectify the basis of our distrust?
We need to stop wasting valuable political energy advocating for this strategy. It’s high time we take matters into our own hands.
I am not here to litigate a defense, particularly of JBS, myself, or any other organization. I am present simply to point out an obvious truth, which is that moneyed interests have usurped the pristine structure of the constitution a long, long time ago.
To this point of truth, if it is not entirely too late in the game to do so, I wholly support an article-V convention, which I am fully aware is part of the constitution.
Nevertheless, as any prudent person should, I remain suspect as to the ways and means in which a convention would be implemented and enforced. As such, I would have natural concern as to the unintended consequences that may arise from such.
Yes, the government has the power to legislate âlegal changes,â which merit such laws and legislation constitutional, however, such legal acts and the abuse thereof, has transformed America into a United States of people ruled-BY-laws vs. a free republic governed by an impartial rule-OF-law.
The fact that Hitler and his regime operated legally under their reforms proves that âlegalâ does not make government âright.â
Although I am in complete agreement with strict adherence to an impartial rule of law, and the articles, which comprise the constitution, given the various divisions as to the interpretation and âapplicationâ of the constitution, I believe you misstep in proclaiming that either the constitution is obeyed or it is not. The crux of the problem is that there is clearly too much middle ground between those two points.
In order for me to be convinced to move forward with an article-V convention, I would need unequivocal proof that an impartial, incorruptible legal mechanism would be designed to structure and coordinate the convention. To insure that it operates within the strict bounds of adherence, and within the spirit of the constitution so as not to alter in any way the whole of its original intent. An incorruptible mechanism that would have the complete power to affect remedy of all transgressions, and returning the nation toward reestablishing its republic to one, which is a nation OF impartial law vs. a nation ruled BY selective laws drafted layer upon layer in perpetuity.
As previously mentioned, I am not here to litigate or win an argument for the sake of such. That being said, as one patriot to another, I shall continue to suggest an objective reading of Quigleyâs Tragedy and Hope.
Stories must be told at these conventions that help people to see how big $ hurts them — or else no one will really care.
Then encourage people to pressure their lawmakers to stop kowtowing to $$$.
Now you will say of course I am naive because I have not bought into all these so-called violations of the Constitution but as I have done many times, when you actually analyze these so-called violations, you find out the Constitution does actually authorize them, usually with direct language. What really happens is people don’t like the decision and use as one of their erroneous arguments to oppose the action, the government is violating the Constitution, when, in fact, it has not. Now I am not saying that individuals within the government have not broken the law. But that is a far cry from the government doing it. Only in refusing the call the convention has the government actually violated the Constitution.
Now why is that so important? Because if you are correct regarding government violations, then until the government is forced to close the only breach which justifies to that government, a right or ability to do so, the violations will continue because the government simply assumes if it can violate Article V, it can violate any other term of the Constitution. Indeed the Constitution backs that point of view up. Equal protection under the law. Hence, the lowest common denominator of protection under the law must be its lowest point and not obeying it is a low as you can get.
So while you may be open to the debate the fact is by that action you accept the very premise you rail against—that the government has the very same option of obedience you yourself claim. How then, can I ask, can you justify objecting to “violations” of the government of the Constitution or otherwise when that is the very position you yourself advocate? You have to make a decision. Either the entire Constitution is obeyed, or it is not. Between these two points there is no middle ground. And if you come to the former conclusion, then there can be no debate as a convention. It must be held.
That is exactly what the JBS has done and accomplished and you wrote such lies were “marginal” and of “no consequence.” There is no other way any reasonable man could interpret your own words but to take them on the face value of their obvious intent: a clear defense of the JBS by attempting to justify them as minimal compared to the chaos their effect has caused. You either need to think things out better before responding or realize you are in fact a JBS supporter after all.
Why do you think the government does these actions today that you then wail about? It is because people, like yourself who urges the convention provision not be obeyed even though the Constitution demands a convention be called as the action of the states has satisfied the single term in Article V. Thus, by your own act, you have allowed the government to veto the Constitution. Why? Because the lies of the JBS have been believed and thus at the most fundamental level, the people including yourself, by this action of belief, have told the government they accept and indeed, urge the government not obey the Constitution. The government, in fact, as all good representative governments do, can be accused of no more than obeying what the people have instructed them to do. In this instance, disobey the Constitution. In reality therefore you are the same as the government. The only difference between you and them is the argument over which parts of the Constitution should be vetoed, not whether it should be. So really you have no right to criticize the government since they acting exactly in the manner which you yourself support.
As to the basis of my “reality” being public record then it is you whose head is in the sand. You obviously want a different form of government. What that form would be is actually marginal and of no consequence for it will not be you who decides it but the American people and no doubt their vision will be greatly different than yours. Still you wish change. Then, in the ruling document which allows for this change to occur in a peaceful, legal, permanent manner, you oppose it. You oppose it not based on the public record which you have never proved is false. You oppose it based on lies from a declared opponent of the very means you, by your own words, say is needed to repair the issues of this nation. That means of course, is change. The JBS opposes any change in our form of government whereby the convention is employed. Thus, though they criticize the government mightily, they want everyone to rely upon it exclusively to bring about any necessary change. The futility of that should be obvious. Yet by your opposition to using a convention, you support this.
Get your head out of the sand. Nearly every nation on this earth has held conventions within the last 40 years. There is no fear in these nations of making changes. Indeed the fact is the number two economic power in the world, China, became that because its convention, which is held yearly in its nation, suggested changes to their constitution in the 1980’s which directly allowed China to become the powerhouse of economics it enjoys today. The list of nations outside our own that have not held conventions is small. Right now, we share this “privilege” with Iran and North Korea. There may be others that have not held a convention, but not many. These nations are moving forward having shed the burdens of constitutions that are no longer adequate to their needs in the 21st Century. We sit with our still stuck in the 1700’s trying to compete with modern nations. The result of this is obvious. Our Constitution requires changes, that is amendments, no more and we are fools if we think the world will wait for us forever to make them. They will simply move on without us.
You think the problem is the Congress and the courts? Fine. Then put pressure on them to obey the law and change them permanently through the amendment process. Any action they have taken can be changed or stopped by amendment. But stop believing lies. Do yourself a favor if nothing else and at least make your decisions based on facts and truth. Then at least you won’t have to face someone like me in the future pointing out your mistakes. As to the Founders, you are 180 out. They gave us this process. There is no fault in that. Now we are finished.
It seems like the more that we learn, the more we really donât know.
Bill, the necessity of states agreeing on the topic of an amendment is not my main argument; the point I was making is that, once a convention is called, its topic can’t subsequently be limited, which I think makes it highly likely that a convention will produce an amendment that will reach beyond what 38 states are willing to ratify.
But in terms of your claim that it’s unnecessary for states to agree on a topic in order for a convention to be called, I disagree. As you point out, there have been 700 applications by 49 states for a convention; if the petitions for a convention didn’t have to agree on its topic, shouldn’t Congress have called a convention long ago?
Many argue the problem rests in a corrupt House that has no meaningful allegiance to the principles of the Constitution, and instead aligns itself with omnipotent factions of shadow government influences and the lobby groups that finance their campaigns and re-election efforts.
As such, aside from the violent revolutionary inference, which is futile, I suspect taking matters in our own hands better translates into strident and unrelenting political activism that places principled agents in the House of Representatives to effectually force change i.e. the general success of the Tea Party.
Considered by many to be a fundamentalist right-wing extremist group, the John Birch Society are RootStrikers of a similar but slightly different stripe. They are strict constitutionalists, and warn against a convention. They seek to take back control by way of slowly but surely infiltrating the House of Representatives with Constitutionally principled agents.
Unbelievably, JBS have been at it since 1958, and have yet to yield in their long-standing mission to succeed. Apart from some of their religious zealotry, they seem to have a very keen eye on ROOT-CAUSES, and a political strategy to extract them.
The record is also clear regarding the number of state applications and states that have applied. According to a just released report by the Congressional Research Service, the only government recognized resource showing the applications, FOAVC, shows 49 states have submitted over 700 applications for a convention call. The applications can be read at www.foavc.org. The CRS reports, there are two, can be read under the “News” section on the site.