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The Downside of a Constitutional Convention

Written by Ralph E. Stone. Posted in News, Opinion, Politics

Published on January 26, 2010 with 3 Comments

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New Yorker cartoon

By Ralph E. Stone

January 26, 2010

As we all have no doubt read or heard, the Supreme Court in Citizens United v. Federal Election Commission invalidated the Bipartisan Campaign Reform Act (2 U.S.C. §441b), ruling, among other things, that the “government may not suppress political speech on the basis of the speaker’s corporate identity.”  According to the Supreme Court, its ruling is a logical extension of a long line of decisions affording First Amendment rights to corporations, but is clearly a set back for campaign finance law.

Too many Americans seem unaware that corporate personhood has been around since 1886.  It follows then that if a corporation is a person under the Fourteenth Amendment to the U.S. Constitution, it has First Amendment rights.  The first reaction of many critics of this decision is to shout, “Change the Constitution.”  (See for example, <www.MoveToAmend.org>  Be careful what you wish for.

Changing the U.S. Constitution is not easy.  Article V of the U.S. Constitution sets forth the process for changing the 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.”

According to Article V, there are only two ways that amendments can be proposed to the Constitution: (1) by a two-thirds vote of both houses of Congress; or (2) on the application of the legislatures of two-thirds of the several states, Congress shall call a convention for proposing Amendments (commonly referred to as a “constitutional convention”). The second method has never been used. After amendments are proposed by either method, they then must be ratified by three-fourths of the state legislatures, or by three-fourths of special state conventions. According to Article V, Congress decides which ratification process will be used.

If such a convention is called, the danger is that there would be no way of controlling what it might or might not do – from changing or eliminating specific amendments already in the Constitution to drafting an entirely new constitution.  A convention could become a “runaway convention” in much the same way that the Constitutional Convention that produced our current U.S. Constitution was a runaway convention that disregarded the guidelines under which it was convened.

The danger of calling for a constitutional convention was succinctly stated in 1988 by Warren Burger, former Chief Justice of the Supreme Court:  ”I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or to one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the Confederation Congress “for the sole and express purpose.”

At first blush, amending the Constitution seems appealing.  However, when fully informed about the downsides of a constitutional convention, most Americans and state legislators — be they liberal or conservative —  would oppose the convening of a new constitutional convention.  If there is a solution, it is demanding adherence to the U.S. Constitution by the three branches of the federal government, which, of course, is easier said than done.

Change the U.S. Constitution?  It is not going to happen and shouldn’t happen.

Ralph E. Stone

Ralph E. Stone

I was born in Massachusetts; graduated from Middlebury College and Suffolk Law School; served as an officer in the Vietnam war; retired from the Federal Trade Commission (consumer and antitrust law); travel extensively with my wife Judi; and since retirement involved in domestic violence prevention and consumer issues.

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  • Bill Walker

    It always amazes me how people can write blog so accurately then go so wrong at the end.

    The author spells out the amendment process perfectly then goes off the tracks. He says a convention (commonly referred to as an Article V Convention) can propose amendments. He then says it can write a new Constitution (false) and even ignores his own presentation in which Article V says, “as part of THIS Constitution.” In short a convention cannot write a new constitution. If it can, then so can Congress because it too has the power to propose amendments. I don’t see him warning about this threat in his column.

    Second, he quotes the phoney Burger letter. As shown at the website http://www.foavc.org in the FAQ section, FAQ 8.6 the letter is a phoney written by a John Birch Society operative. See: http://www.foavc.org/file.php/1/Articles/FAQ.htm#Q8.6
    As the public record shows Burger actually advocated using a convention system to propose amendments.

    While on the site you might want to read the 750 applications from all 50 states for a convention call. That’s 20 times the number required to cause a convention call by Congress. Hence, as the state legislatures have applied in massive number for a convention, the author’s conclusion rings untrue. As to Congress itself, if you read FAQ 9.1 you’ll discover for the members of Congress to refuse to obey Article V is a criminal offense.

    Finally as to the myth of the 1787 convention being a runaway please read the article at http://www.nolanchart.com/article6449.html. You’ll discover the convention acted entirely within the law of the Articles of Confederation, the ruling law of the land at that time.

    The author needs to get his facts straight on all of his article, not just part of it.

  • Ralph

    Comment on the Comment: No Article V conventions have ever been convened and because there is no case or controversy, the Supreme Court has not interpreted Article V. There are many unanswered questions about how such a convention would function in practice. We are left with the text of Article V itself. With apologies to Friends Of the Article V Convention, anything beyond the text is speculation.

    Let me speculate. There are well-founded concerns about whether a modern convention with a limited mandate could exceed its original scope and radically alter the Constitution, adopt undesirable amendments, or lead to constitutional upheaval. The original purpose of Article V was to give States the power to circumvent a recalcitrant or corrupt Congress. Therefore, it does not make much sense that Congress would have power to limit the scope of the convention. It’s role would be merely ministerial. Then it follows that the States would have complete control of the convention process. This interpretation comports with the wording of the Article: “. . . two thirds of the several States, shall call a Convention for proposing Amendments.” Then it seems to follow that the states would determine the procedures for the convention, such as voting rules and selection of delegates. That’s what happened at the Philadelphia Convention of 1787, the country’s only experience with a constitutional convention. It would be difficult for any governmental body to enforce a limitation on the convention, especially given that a constitutional convention, once created, could conceivably claim independent authority as a separate constitutionally authorized body. But even if the convention exceeded its authority, the proposed amendments would have to be ratified by three-fourths of the states, which would be a check on a “runaway” convention.

    Why hasn’t Article V been used? Because the history of the convention method of amending the Constitution is filled with much confusion and debate about its meaning, proper application, and scope. One of the major reasons it has never been used is the prevalence of doubts and concerns about the limitations that could be placed on a convention. Perhaps, Congress should propose or the States to petition for an amendment to clarify Article V.

    Did the Philadelphia Convention of 1787 exceed its mandate? Although the delegations from several states were specifically limited to only revising the Articles of Confederation, others were given broader mandates to make other constitutional proposals, but even these states’ delegates exceeded their broad mandate by proposing new means of ratifying the Constitution rather than using “existing institutions and procedures.”

    The Warren Burger letter: I agree there is debate about the authenticity of this letter. Yet, the letter sets forth the concerns/fears many have about an Article V convention.

  • Bill Walker

    Mr. Stone,

    I’ll give you this. When you are inaccurate, you REALLY are inaccurate. As such no one will take your statements seriously because you have your basic facts wrong. Indisputable, irrefutable facts.

    Let’s begin with your statement the Supreme Court has not interpreted Article V. For the record, it has stated that Congress must call a convention if the states apply (which they have) in four separate decisions. So much for your no cases or controversies. Beyond which you neglected suits. You can also bring a suit under the Constitution. Please see http://www.foavc.org/file.php/1/Articles/FAQ.htm – Q8.4. In those decisions, the court established that article V contained no rules of construction, meaning there is no interpretation nor implication allowed. It established delegates must be elected to conventions. It held that neither the courts, the states, nor Congress can alter Article V. It made several other significant rulings on the matter. I suggest you actually read the texts before saying the courts have never ruled on Article V. As to your statement there is no law to regulate a convention, I refer you to http://www.foavc.org/file.php/1/Articles/Brief.pdf. You will find that not only is there well settled law regarding all aspects of an Article V Convention, but that you are buried in it if you study the law regarding it. Hence, it is not speculation that is made but simple reference to fact and law.

    You also neglected to mention my two federal lawsuits which can be read at http://www.foavc.org/file.php/1/Articles/FAQ.htm#Q9.1 . In those the government admitted for the public record that a convention call was peremptory, that it was based on simple numeric count of applying states with no other terms or conditions, that a sufficient number of applications existed to cause a convention call, that to refuse to call a convention was violation of oath of office and that members of Congress had criminally violated their oath of office for not calling a convention. In sum then, your statement there has been no lawsuits is entirely false.

    True. You and all other constitutional hypocrites are free and have speculated thus causing all the confusion and fear you speak of. I find it interesting that all such as you share a common goal: the destruction of the Constitution. For how else can you explain that you (and I guarantee I will find this on your site) either say national health insurance is unconstitutional or allowing corporations to contribute to political campaigns is unconstitutional or that some other action by the government is unconstitutional then turn right around and support the government acting unconstitutionally? Obviously you want the government to have the power NOT to obey the Constitution. The only dispute I can see is over which parts of the Constitution you support being disobeyed, not whether it should be.

    You are correct the role of Congress is to be ministerial. As to the states regulating a convention, while they certainly would and do have input in that without their applications no convention can exist, as to actually controlling a convention, they have none. States cannot propose amendments. Only Congress and a convention can and those bodies equally have say over their agenda. Funny how not one, and I mean this literally, not one constitutional hypocrite such as yourself has ever, and I mean ever, screamed or complained or even mentioned the fact CONGRESS HAS THE IDENTICAL POWERS AS A CONVENTION AND CAN THEREFORE DO THE EXACT SAME THING YOU SAY A CONVENTION CAN MEANING THAT IF YOU SAY A CONVENTION CAN WRITE A NEW CONSTITUTION, IMPOSE IT BY FIAT, REMOVE OUR RIGHTS AND SO ON—-SO CAN CONGRESS. How come no fear about that fact? Where is your righteous indignation that perhaps today, tomorrow or maybe next week Congress will be removing our rights and so forth? Hence, if the term “convention to propose amendments … as part of THIS Constitution” aren’t clear enough, then I don’t know what to say beyond you can’t read or more likely WON’T read. And how do I know you’re blowing smoke because unlike me, you provide no citations for your statements, no proof, no evidence. Name the person, party or whatever that has stated they would use a convention as you describe. Without such a person, party or whatever, what you say is literally impossible. PROVE to me that your statements are right and stop wasting everyone’s time with speculation.

    Now let me give you a piece of history. The 1787 Constitutional Convention was not, I repeat, NOT authorized under the Constitution. It operated under the Articles of Confederation and if you bother to READ that document you’ll see the entire “amendment” process, actually “alteration” process consisted of one sentence that was so vague it didn’t even designate who could propose an “alteration.” The convention did not exceed its authority under the law that was in effect at that time. THERE WAS NO RUNAWAY CONVENTION. THAT IS A MYTH. See http://www.nolanchart.com/article6449.html .

    Why hasn’t Article V been used? Because Congress wants to keep all the political power for itself. It’s just that simple. And you help to keep that fact alive and well with your support of their “right” to veto the Constitution. I’m sure if you bring it to their attention Congress will give you some kind of medal for constitutional hypocrisy above and beyond the call of duty.

    Now as to your last comment regarding the convention of 1787. First of all, as noted, there was no law pertaining to who could propose an “alteration” to the Articles of Confederation. Hence, Congress had no more authority to dictate in its RESOLUTION (notice I capped that so you remember the word) which had no force of law, than anyone else. Further, that resolution was incorrect and therefore not in compliance with the Articles. The Articles allowed for an “alteration” but the resolution called for “alterations”. Hence, it was illegal under the then current law and could be ignored as it authorized an action not allowed by the Articles. Moreover, the resolution called for changes in the “Constitution” not the Articles of Confederation. So, in sum, how many alterations did the convention produce? One. Exactly as specified by the Articles of Confederation. A single alteration. A Constitution exactly as specified in the Articles and described in the resolution. As to the states giving instructions to the delegates, by my personal count each state voted at least three different times on ratification of the proposed Constitution.

    First, the states voted to hold the conventions mentioned in the Constitution along with financing them and holding elections for them. Second they voted again to accept the vote of the conventions after they had voted on whether or not to accept the Constitution. Third, they then voted again to notify Congress of accepting the new Constitution. All this time the Articles of Confederation remained in force MEANING if one single vote by one single state had been in the negative, the Constitution would have been defeated. All states voted for the Constitution which then satisfied the Articles of Confederation and further, if you read the Articles of Confederation you’ll find provisions in it that allowed for actions by nine states meaning there was legal authorization and precedence for such an action with the Constitution. Indeed, a careful reading shows the Constitution followed the procedures laid out in the Articles of Confederation to the letter.

    The Burger letter is a phoney. If so, then obviously what it states is phoney. The fears and concerns you speak of are by those who do not have the intellectual integrity to actually read up on the subject. Look around you. State convention movements are in practically every state right now from California to New York. People want change and if they can’t get it peacefully, they will get it by other means. The states obviously want a convention. Otherwise they wouldn’t have applied 750 times for one. In short while people such as you may speculate fears to encourage veto of the Constitution, the facts speak otherwise.