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Convention of States: The Good, Bad, and Ugly

  • What is a Convention of States, and what powers would it have?
  • Would such a convention reign in Washington, D.C., or would a run-away convention overturn the Constitution?
  • What role would Congress have in such a convention?

 

With the recent passing of legislation in both the Wisconsin and Nebraska legislatures, the call for a Convention of States is once again in the news. This has brought up a lot of comments and more than a few questions. So what is this Convention of States? What can happen if one is called? And most important, is it constitutional? Let’s take a dive into the Convention of States and see if we can answer these questions.

Amending the Constitution

The Constitution provides two methods for proposing amendments to the Constitution of the United States: One is by Congress and one is by the States.

Congress can propose amendments by passing a resolution with a two-thirds majority in each house. To date, no amendment to the Constitution has been proposed by the states. However, there are those who wish to change that.

or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,

U.S. Constitution, Amendment V

When two thirds of the state legislatures ask for it, Congress shall call a convention for proposing amendments. It’s extremely important to remember these are methods for proposing amendments, not for actually amending the Constituiton. That requires the states to act.

which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

U.S. Constitution, Amendment V

So the process is simple, Either Congress proposes amendments or the states request that Congress call a convention for proposing amendments, but any proposed amendments would only become part of the Constitution if three-fourths of the states ratify it. Why did the framers give us two methods of proposing amendments? Because, if you remember, the Constitution is a compact between the states. If only Congress had the authority to propose amendments to the Constituiton, then the parties to the compact would be unable to rein in an out of control federal government. Does anyone really think that Congress will ever propose a balanced budget or other amendment that restricts their powers?

So why are some people so adamant that we need a Convention of States, while others are so vehemently apposed to it? I believe that answer will come if we take a deeper look into what we could expect if such a convention is eventually called.

Let’s start with the arguments for and against a Convention of States.

The Good and the Bad

Washington, D.C., is broken. The federal government is spending this country into the ground, seizing power from the states and taking liberty from the people. Its time American citizens took a stand and made a legitimate effort to curb the power and jurisdiction of the federal government. The Founders gave us a tool to fix Washington, D.C. We must use it before it is too late.

Why Do We Want to Call a Convention of States? – Convention of States Action

I think most of us would agree that Washington, D.C. is broken, that they spend too much money, and they have been seizing power from the states and the people. However, the questions we should be asking are if a Convention of States the only tool The Founders gave us and would it be the best solution? The only purpose for calling a Convention of States would be to consider ideas for amendments to the Constitution.

There are a few amendments I would like to see proposed to the states. I’m sure you have some ideas yourself. I’m also pretty sure that we don’t agree on all of them. If we cannot get Congress to propose these ideas, why not call a Convention of States where our ideas can be better heard?

The preceding Annapolis Convention of 1786 issued a call for a convention with delegates from all 13 states to devise changes to the then-government Articles of Confederation, the first constitution of the United States prior to the current Constitution. These revisions, or changes, to the Articles of Confederation, would need to be agreed to by Congress and then be afterwards confirmed by the legislatures of every state” as required by Article XIII of the Articles of Confederation. Early in 1787 Congress issued a resolution authorizing a convention with the same ratification requirement, and nine of the twelve states that sent delegates to the Philadelphia Convention of 1787 also included the Article XIII ratification requirement.

Instead of simply revising or amending the Articles of Confederation, the runaway” 1787 Convention replaced them with an entirely new Constitution. In fact Edmund Randolph, a delegate from Virginia, urged fellow delegates: [t]here are great seasons when persons with limited powers are justified in exceeding them, and a person would be contemptible not to risk it.” And rather than adhering to the Article XIII requirement that any alternations would have to be confirmed by the legislatures of every State,” the newly drafted Constitution would be ratified in accordance to its own mode of ratification found in Article VII.

STOP A CONSTITUTIONAL CONVENTION – John Birch Society

The John Birch Society is adamantly against a Convention of States, or a “Con-Con” as they call it. Their main concern seems to be a “runaway convention”, but their history is a little off. Yes, James Madison pushed for a new federal government, and he found an ally in George Washington. Rather than a “run-away” convention though, the delegates got permission from the states to draft a new constitution. Since this was a new agreement, not a change to the Articles of Confederation, Articles XIII of that document does not apply. While the new Constitution did require only nine of the 13 states to ratify, it was the intention and of the convention to come up with an agreement with which all 13 states could agree. This goal was achieved on May 29, 1790 when Rhode Island became the thirteenth states to ratify the Constitution.

Both The Convention of States Action and the John Birch Society seem to gloss over one important part. The Convention can merely propose amendments, it cannot change the Constitution by itself. If a Convention submits a balanced budget amendment, or even a completely new Constitution, it wouldn’t take effect unless three-fourths of the states ratify it.

The Ugly

There is another actor in this Convention of States we need to look into: Congress. Article V states the Congress must call a convention when two-thirds of the state legislatures apply for one. But is that all Congress will do?

The Role of Congress in the Article V Convention

The state legislatures are indispensable actors in the Article V Convention process—nothing can happen unless 34 or more apply for one. Congress is equally indispensable to the process by which a convention is summoned, convened, and defined. The Constitution, with characteristic economy of phrase, simply directs that Congress … on the application of the Legislatures of two thirds of the several States, shall call a Convention for the proposing of Amendments….” Beyond this language, however, observers have identified subsidiary issues for consideration by Congress, of which five may be among the most important:

  • What is the overall role of Congress in the convention process? Would it call a convention and then stand aside, or would it be the guardian” of a convention?
  • More specifically, what is Congresss obligation under Article V to call a convention if it receives sufficient state applications?
  • What sort of convention does Article V authorize?
  • If an Article V Convention proposes an amendment or amendments, does Congress have any discretion as to whether they must be submitted to the states for consideration?
  • What is the constitutional status of an Article V Convention?

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress – Congressional Research Service

Congress seems to think that the requirement to “call a convention for proposing amendments” gives it the power to do much more. The report from the Congressional Research Service sums this up.

The Article V Convention alternative for proposing constitutional amendments was the subject of considerable debate and forethought at the Philadelphia Convention of 1787. Clearly intended by the framers as a balance to proposal of amendments by Congress, it was included to provide the people, through applications by their state legislatures, with the means to call a convention having the authority to consider and propose changes to the Constitution, particularly if Congress proved incapable of, or unwilling to, initiate amendments on its own. It also has the distinction of being one of the few provisions of the Constitution that has never been implemented. As such, the convention alternative would present a wide range of policy and procedural questions should Congress ever be called on to consider or convene an Article V assembly. If this were to occur, Congress would not be without resources. This report has sought to identify and provide analysis of key issues for its consideration. In addition, other guideposts, if not simple answers, exist in the broad range of sources identified and cited in this report. These include the original intent of the founders, as preserved in the record; historical examples and precedents, particularly from the last decades of the 20th century; and the large volume of scholarly writing on the subject. Not least, Congress could also avail itself of the considerable body of study and debate developed by its own Members and staff during the more than two decades it gave serious consideration to the question of the Article V Convention alternative.

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress – Congressional Research Service

Even though the Constitution gives no such role to it, Congress seems to believe they should be deeply involved in the convention process. In addition to the Constitution, Congress also believes it can use recent precedent and their own staff to come up with ways to meddle with the convention. Lost in this discussion is the fact that, since no such power was specifically delegated to the United States, much less Congress, any attempt to exercise such power would not only be a violation of their oath of office, but theft.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Amendment X

Conclusion

So where does that leave us on the question of the Convention of States? Again, we should start by answering a few questions.

Is a Convention of State constitutional? Absolutely. Article V clearly says that the states can request a convention, and when two-thirds of their legislatures do so, Congress shall call a convention. Was the convention designed to allow states to propose amendments that Congress would not? Yes again. Are there amendments to the Constitution that should be considered to rein in an out of control federal government? Most definitely yes. Could such a convention propose an entirely new Constitution? Yes, but it would still take ratification by the states.

Would a Convention of States fix Washington, D.C.? Well, there’s the rub. Washington, D.C. routinely ignores the Constitution as written. What makes people think that they won’t simply ignore any new amendments? I even had one supporter of the Convention of States tell me that Congress may ignore that Constitution, but they wouldn’t ignore any amendment. That statement is plainly laughable. All three branches of the government in Washington, D.C. routinely violate most, if not all, of the amendments to the Constitution. And if the report from the Congressional Research Service is any guide, Congress will ignore the Constitution as soon as a convention is called.

So if a Convention of States is not a solution, is all lost? No. Most of the problems we find in Washington, D.C. is not a fault in the Constitution, but in our unwillingness to enforce it. Many of the amendments that the Convention of States Action calls for are already covered by the existing Constitution.

  • Require members of Congress to live under the same laws they pass for the rest of us (Amendment X).
  • Impose limits on federal spending and/or taxation (Article I, Section 8, Clause 1).
  • Get the federal government out of our healthcare system (Amendment X).
  • Get the federal government out of our education system (Amendment X).
  • Stop unelected federal bureaucrats from imposing regulations (Article I, Section 1, Clause 1).
  • Remove the authority of the federal government over state energy policy (Amendment X).
  • Force the federal government to honor its commitment to return federal lands to the states (Article I, Section 8, Clause 17).

So before we go trying to change the Constitution, maybe we should try enforcing it first. At least then any changes we might make would be more than just the sound of our own voice.

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Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com