I Can’t Decide If Supporting A Constitutional Convention Is Dangerous Or Just Silly

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, –Article V of the United States Constitution

There’s been talk of holding a constitutional convention on conservative blogs for years. Recently conservative radio host Mark Levin (Liberty Amendments) and right leaning/libertarian law professor Randy Barnett (Federalism Amendments) have issued a set of proposed amendments a convention could take up. Oklahoma Senator Tom Coburn gave the movement a boost when he publicly called for such a convention.

While I’m sympathetic to the needs driving the idea and the general thrust of both sets of proposals, I think actually calling such a convention would be a disaster.

To get two-thirds (34) of the states to agree to the convention. Assuming all of the states that voted for Mitt Romney in 2012 agree with the idea (a large and unfounded assumption) you have 23 states. Where are you getting the other 11 from?

But lets again assume that you can find the other 11 from Obama states. It’s very likely they will then want to push for a far more liberal agenda than Levin, Barnett, Coburn and conservative supporters would want.

Suddenly the agenda won’t just be limiting the federal government but also things like adding rights to health care, housing, and a “living wage”. No doubt there would also be discussion of a constitutional guarantees for people to be free from racism, homophobia and all sorts of other things currently found in college speech codes.

Given that delegates would mostly likely be picked by the state legislatures, ask yourself who is more likely to send delegates that will be squishy and find compromise with the other side? People picked by Republicans or Democrats? Yeah.

And even if they didn’t cave because they are ideologically moderate, the reality is that getting anything our of a convention let alone something that could be ratified would, as before, require compromise (see Compromise, Great). What are you willing to give up to the left to get something you like.?

Of curse whatever, if anything, this convention would turn out would still have to be ratified by  3/4s of the states (38).

What if the proposed amendments were offered to the states piecemeal and voted on separately? It would be a lot harder to stop a “No H8” amendment than it would be to ratify a national sales tax as Barnett proposes.

A constitutional convention is a crap shot that could easily backfire on its advocates. Remember the original convention was only supposed to be empowered to revise the Articles of Confederation but in the end they created an entirely new form of national  government.

My bottom line is much like it is with the Balanced Budget amendments that are floated around…if the political will existed to do many of these things, they would get done with out going through this difficult process.

If you aren’t really serous about a convention but want to use the chatter around calling for one to lay groundwork to build popular support for conservative policies, fine. But if you think a gimmick like a constitutional convention can replace the lack of political support for limiting government you aren’t really serious about actually changing the political and legal processes of the country.

There are real fights to be had in the next few month, let’s not follow people who don’t want to have them down the road chasing shiny objects.


About Drew

I blog about politics and hockey because I sort of understand those things. I'd blog about women but I'll never understand them.

Posted on August 23, 2013, in Uncategorized. Bookmark the permalink. 4 Comments.

  1. My understanding is that this alternate pathway to proposing amendments via the states rather than congress is not a constitutional convention.

    Article V lays out two procedures for amending the Constitution. One is familiar, having been used for all 27 existing amendments: Each chamber in Congress passes an amendment by a vote of at least two-thirds; for it to take effect, it then must be ratified by three-quarters of state legislatures.

    The other amendment procedure “has been tried in the past without success” and now “sits dormant,” Levin told listeners. It involves “the direct application of two-thirds of the state legislatures, for a convention of proposing amendments — not a constitutional convention, a convention for proposing amendments, which would thereafter require three-fourths of the states to ratify … .”

    However, I have wondered, what is a constitutional convention if not this?

  2. Interesting but either possibility is mooted by the lack of Republican political will

  3. I believe the confusion regarding the meaning of what a constitutional convention is comes from how the procedure is defined in the Constitution, which is limited to offering amendments to the Constitution, as opposed to how a similar meeting of the states, also called a constitutional convention, was used in a much less limited fashion when we moved from the Articles of Confederation to the Constitution.

    In both cases states meet in regard to discussing the larger governance that flows from their mutual agreement.

    The more common understanding of what a constitutional convention is is derived from our experience with the creation of the Constitution. That understanding is that a constitutional congress writes constitutions.

    The less common understanding of what a constitutional congress is, the one Levin is currently bringing to light, is one that is circumscribed by the Constitution and only allows for the proffering of amendments.

    Thus, the difference is that one use of the term “constitutional convention” is preconstitutional while the other is a constitutional and hence a circumscribed use of a gathering of states to discuss mutually agreed upon governance. Obviously we are currently operating under a constitution, therefore the meaning of “constitutional congress” is defined by the Constitution.

    It is for the above reason I feel Drew is wrong to say that

    Remember the original convention was only supposed to be empowered to revise the Articles of Confederation but in the end they created an entirely new form of national government.

    . Drew references the an extra-constitutional use of the term constitutional convention rather that the Constitutional use of the term as used by Levin.

    That said, I agree with the thrust of Drew’s post that the hurdles are large in regard to the Liberty Amendments. I do not, however, see the dangers he references.

    But is there not a strength in those hurdles? How often do we hear “we need a discussion”? And do the hurdles not create the need for a discussion, and inadvertent self education, something I have just experienced in regard to the meaning of “constitutional convention”?

    Admittedly I have a distaste for the phrase “we need a discussion” but that is because such discussions are always held on leftest terms, but this is an area of the Constitution ignored by progressives leaving this discussion to be had without the initial distortions and assumptions of progressivism. It could be enlightening to the general public.

    Remember progressives have in part won the past century through the use of such low impact yet pervasive educational thrusts. More often than not the discussion is more the point than the issue being discussed.

    So it is with the Liberty Amendments. Perhaps they are less the point than the discussion being had…

  4. I would add, consider the gun control argument that has been made since Sandy Hook.

    Did the bills fail? Yes.

    But there was a discussion had and the very fact that a discussion was had gives credit to the notion that gun control is acceptable and although no goal was scored, the football is now closer to the goal than it was previously.

    Discussions are not stupid. The left knows this.

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