Constitutional Convention

The Case Against Convening a New Constitutional Convention

The U.S. Constitution may not be perfect, but a new constitutional convention will probably make it worse.

A. Barton Hinkle|Feb. 9, 2015 12:00 pm

Arguments about process are usually, at bottom, arguments about policy. That explains why many Republicans, Democrats and The New York Times change their opinion about Senate filibusters as frequently as control of the Senate changes hands: Giving more power to the minority party is a virtue only if you’re in it. It also explains why enthusiasm for changing the Constitution waxes and wanes according to the issue being debated.

The U.S. rarely lacks for suggestions about how to improve its guiding document. In the 1980s and 1990s, a balanced-budget amendment was in vogue—mostly among conservatives. Those on the right also have proposed constitutional amendments barring abortion, forbidding gay marriage, prohibiting the burning or desecration of the American flag, permitting organized prayer in school, and even enabling states to repeal federal laws and regulations.

Liberals also have sought to amend the Constitution through, e.g., the Equal Rights Amendment. Bill Clinton endorsed an amendment to protect the rights of crime victims. More recently, some on the left who hate the Citizens United decision have proposed an amendment that would nullify it; others have suggested amendments to scale back or repeal the Second Amendment.

Often, efforts to amend the constitution arise from anger at Supreme Court rulings. Many Americans who favor such amendments might not realize there is a less drastic approach. Article III says the Supreme Court shall have appellate jurisdiction “with such Exceptions, and under such Regulations as the Congress shall make.” If it wanted to, Congress could steer the High Court with a much heavier hand.

Amending the Constitution is difficult and rarely done. Yet to some, occasional amendments do not suffice. They would like to pass several amendments at once. The process they propose—a convention of the states—is spelled out in Article V. Legislation has been introduced in four states (Alaska, Georgia, South Carolina, and Missouri) and this year Del. Scott Lingamfelter introduced a resolution in Virginia, which he withdrew Thursday after it failed to gain enough traction.

After two-thirds of the states petition it, Congress calls a convention of the states, which can propose whatever changes it likes. Those must then be ratified by three-fourths of the states, either through their legislatures or through subsequent state-level conventions.

The groundswell for all of this has conservative roots. Michael Farris, a longtime social conservative and chairman of the Home School Legal Defense Fund, leads Convention of States (conventionofstates.com), which identifies four (actually, three) “major abuses perpetrated by the federal government”: the spending and debt crisis, over-regulation, congressional attacks on state sovereignty and the somewhat repetitious fourth item, a federal takeover of decision-making in America.

Backers of the movement would like to see, among other things, a balanced-budget amendment, a tax ceiling, term limits for lawmakers and Supreme Court justices, and limits on executive orders and federal regulations. These are not exactly issues that resonate with the Elizabeth Warrens of the world.

The idea of calling a convention has a certain Jeffersonian appeal. As the sage of Monticello wrote in a letter to Samuel Kercheval, “Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. . . . I am certainly not an advocate for frequent & untried changes in laws and constitutions . . . but I know also that laws and institutions must go hand in hand with the progress of the human mind . . . we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

But the idea also has alarmed those on the right who are conservative in temperament as well as ideology. They worry about the possibility of a runaway convention, in which a convention meant to make a few minor adjustments to the nation’s charter decides instead to scrap it entirely and start over. That is precisely what happened in 1787, when delegates who assembled in Philadelphia took their mandate to fine-tune the Articles of Confederation and ran off with it.

To this concern, supporters of the convention idea have a ready answer: It can’t happen. As former Virginia Attorney General Ken Cuccinelli argued in a recent Facebook post embracing the movement: “Critically, 38 states have to ratify any proposals coming out of the convention before they become part of the Constitution—this is our ultimate ‘backstop.’ Put another way, at a time when Republicans control more state legislative chambers than ever before in my lifetime, only 13 legislative bodies (e.g., only the House of Delegates, even without the Senate) may block ANY proposed amendment.”

From one angle, this seems persuasive. In fact, it might be so persuasive that it renders the entire project moot. If only 13 legislative bodies, or parts of legislative bodies, can stop any proposed amendment from taking effect, the most likely outcome would be no amendment taking effect.

On the other hand, it is not hard to imagine how a runaway convention might succeed. If conservatives gained enough political power to bring about a convention of the states, then presumably they would have enough political power to dominate the subsequent state-level conventions that would have to ratify the proposed amendments. In that case, they could rewrite the Constitution to their hearts’ content.

At least for a while. Constitutional amendments viewed as conservative when passed could end up serving liberal goals. For instance, conservatives seem to assume a balanced-budget amendment would require Washington to cut spending. In fact, given the choice between sharply higher taxes or sharply reduced government benefits, the public might opt for the former. It also might opt for vastly higher taxes to support a war of national survival, or perhaps even a war of convenience, if persuaded to by a sufficiently charismatic leader.

There are other reasons for skepticism. For instance, constitutions should be (to borrow from legal theorist H.L.A. Hart) sets of secondary rules—i.e., rules that determine who will write the rules that govern people’s conduct.

A rule that forbids wearing hats in church is a primary rule. A rule that says all church rules shall be approved by a two-thirds vote of the church elders is a secondary rule. This is one reason (among many) a constitutional amendment banning flag-burning or gay marriage is a bad idea. We shouldn’t clutter the Constitution with primary rules. But the biggest reason to be skeptical about a convention of the states is this: It fails to address the very problem that inspired it.

Advocates of a constitutional convention are upset that the federal government has grown too large. It has done so, they correctly believe, because politicians have ignored the plain meaning of the current Constitution. Yet if that is the case, then rewriting the Constitution with more or plainer language solves nothing.

If politicians can ignore the language of one Constitution, then they can ignore the language of another. People who break rules don’t start obeying them just because you write some new ones.