Home > Federal Power > Is an Article V Constitutional Convention the way to fix DC politicians?

Is an Article V Constitutional Convention the way to fix DC politicians?

January 12, 2014
US Constitution Pg 1

US Constitution Pg 1

One of my ‘wishlist’ items for the South Dakota 2014 legislative session is to stop an Article V Constitutional Convention. This is a topic that has gained a lot of popularity for those of us that feel DC politicians are not following the Constitutional limits placed upon them. Last year Mark Levin released a book titled “The Liberty Amendments: Restoring the American Republic”. That book has been used as a source to promote amending the Constitution through an Article V constitutional convention. After reading the book I find it lacking real answers to three large problems of an Article V constitutional convention: potential of a runaway convention, unintended consequences from any amendment agreed to in the convention and ratified by the states, and how a constitutional amendment would suddenly make DC politicians work within their constitutional constraints.

Potential of a runaway convention.

There are two methods providing in Article V of the Constitution to propose amendments. The first methods is for 2/3 of the House of Representatives and 2/3 of the Senate to pass the same amendment; then 3/4 of the States must ratify the amendment. The second method is for 2/3 of the States to apply for a convention to propose amendments; any amendments coming out of this convention would also need to be ratified by 3/4 of the states.

Here is the actual text for Article V of the US Constitution:

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, 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; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

As you can see, there are very few guidelines as to how an actual Article V constitutional convention would actually work. My biggest fear is a runaway convention that would have dire consequences for the US Constitution. Keep in mind that the original constitutional convention was technically a runaway convention. Even in his book Levin says he has “fretted it could turn into a runaway caucus.” The main point Levin makes to counter this fear is that 3/4 of the states must ratify any amendments proposed. Yet that fails to take into account that states have ratified bad amendments in the past. The South Dakota legislature ratified the 16th amendment in 1911, thereby helping to establish the modern income tax. That was done with 87% of the South Dakota legislature consisting of Republicans.

Levin purposely wrote his book in a populist manner. Very little of the book actually talks about an Article V convention, and instead focuses on amendments that could be passed in convention. Levin gets the reader so excited about potentially great amendments to pass that he glosses over any pitfalls. My fear is the convention would look at, and pass, multiple amendments. Remember any constitutional convention will have representatives from all states (if I understand it correctly, it takes 2/3 of states to call a convention, but all states will then participate). At that point any amendments being proposed and debated will likely be populist in nature. There will likely be many negotiations and concessions made during the debate. I believe an amendment such as  a balanced budget would be passed, but only after allowing a populist progressive amendment to pass as well. In that case I could easily see the convention passing an amendment such as “corporations are not people”. It is also not hard to believe 3/4 of the states would pass such a misguided amendment.

I’ve seen proposals that convention delegates would be ‘bound by law’ to follow certain guidelines. Personally I believe that approach would be unenforceable by the states. From the research I’ve done the convention delegates would be able to follow the rules they set from within the convention and would not be legally bound to any restrictions from their home state. Such a situations makes it hard, if not impossible, to prevent a runaway convention with any amount of certainty.

Unintended consequences.

Any amendment to the US Constitution from an Article V convention will likely have unintended consequences. Amendments passed by the Article V convention would also probably be populist in nature. It is quite likely a balanced budget amendment would be a top idea. On its face it seems like a great idea. Yet at the same time it is unlikely a balanced budget amendment would pass without an exception for defense spending. The military spending would be exempted because many would fear the US could be crippled if the country were to get into a war and became unable to finance such an effort. Unfortunately an exemption for defense spending would make it constitutional for the US government to operate on a deficit basis, as it does now. I would also expect many social programs would suddenly become ‘important for the security our nation’. I hear that argument often for social programs today. Any potential amendment to come out of a convention must be carefully scrutinized for unintended consequences that may actually make situations worse than before the amendment. This of course is also true for any amendment that originates in Congress; a case can be made that many of our current 27 amendments created unintended consequences that were never truly addressed.

Getting DC politicians to follow the Constitution.

A big reason the Article V convention is being pushed is because many, including myself, feel DC politicians are not properly following the constraints set forth in the US Constitution. My only question then would be “if the DC politicians don’t feel constrained by the Constitution now, why would an amendment suddenly change that?” Simply put I don’t think the effort and potential risk of a runaway convention are worth the perceived gains. The idea of an Article V convention is good, there just isn’t enough evidence to show it would actually do anything to fix what is broken in DC. Mostly likely any amendment to come out of a convention would be treating symptoms instead of actually tackling the root problems in DC. 

So what is the alternative?

I’ve discussed the above points with many proponents of an Article V convention. Almost always I’m asked the same thing: “If you don’t like this approach, then how do you fix DC?”. Well, that is a tough question. Personally I think we need to start holding politicians accountable. That means self-imposing restrictions on our elected officials as voters. Term limits are often brought up as a good Article V convention amendment. In theory I support term-limits. But in reality I don’t think a constitutional amendment restricting terms will do enough to fix the problem of bad DC politicians. It doesn’t matter if a politician has served for 2 years or 40 years if they are willing to compromise the principles of the US Constitution when they are in DC. The true answer is to have an informed voter-base. Nothing will change for the better unless more voters become involved in the election process. That means paying attention to what elected officials say and do. It also means holding the elected officials accountable during elections.

Beyond that I am not sure what the best answer is. I don’t think any one person can have ‘the answer’. Instead it will take a movement (such as the Tea Party or Occupy) to actually get people involved in the political process. When more people become involved it is possible to get more ‘answers’ to debate and advocate for. While I agree with the spirit of an Article V convention, I just can’t see the potential risk being worth an outcome that will change nothing.

  1. Merlyn Schutterle
    January 12, 2014 at 9:28 pm

    Well the constitution may be a bit outdated, but these dudes we find wanting to change things have no idea what the hell they are up to. They get a vote of no confidence from me.

  2. Drew
    January 12, 2014 at 11:42 pm

    Great commentary as always Ken!
    I have been very worried of an article V for the sole purpose of a possible runaway convention. Lets sure hope we can kill the application.

  3. January 13, 2014 at 4:58 pm

    The only alternative to a convention is a change to the system itself. And that could only come when the current one collapses — which might happen in our lifetimes. I chose to rewrite the Constitution as a private citizen, preparing an alternative in advance, rather than leaving the process to an inevitably chaotic convention — or to mass civil disorder.

    The current system cannot be satisfactorily reformed because our Constitution contains too many provisions subject to constant reinterpretation by the courts; this should not surprise us given its age. Why wait for a convention to propose improvements upon the current document? And why continue to pretend that it suffices, even in the face of its generations long failure to curb the agendas of politicians and justices alike?


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