Overhaul of the Constitution sounds tempting: don’t bite
There are some things that liberals don’t like sitting like bedrock in the U.S. Constitution. In particular, the Electoral College to elect the president, and the assignment of two senators to each state. Then there’s the First and Fourteenth Amendments when extended by the Supreme Court going back to the 1880s to give the same protections to corporations as to real breathing humans.
Liberals, as well as many conservatives, also dislike the scope of powers conferred on the U.S. President that have expanded over the years. At least they dislike them when the president belongs to the opposing political party. (As a Virginian, I would like to point proudly to our Senator Tim Kaine’s principled crusade to limit the chief executive’s license to conduct wars, starting with the Obama Administration.)
How might these anti-democratic features of the Constitution be remedied? In fact, Article V of the Constitution provides for a method to completely overhaul the Constitution.
Say that again? What we customarily have in mind when we think of amending the Constitution is passing an individual amendment with two-thirds vote in both houses of Congress, then ratified by three-quarters of state legislatures. It’s what’s been done to add all 28 amendments (28 in 229 years) to the original 10 in the Bill of Rights. That cautious procedure is in Article V, but also in Article V is something truly radical: a full-blown Constitutional Convention called for by two-thirds of the states (34 out of the current 50). The Congress would then be required to hold the convention, and a new constitution coming out of it could eventually be ratified by “the legislatures of three fourths of the several states, or by conventions in three fourths thereof”—i.e., 38 out of 50 states.
Liberals might take to the idea of making some sweeping changes to the Constitution by having a remake under Article V, but it’s actually some conservatives who have been lassoing state legislatures into the Article V Convention for many years. Right now they’re up to 29 state legislatures and need just five more to get to the 34-state threshold.
Since it’s mostly conservatives who have been seeking the convention, those on the left might be concerned about downsides. Indeed, there are some . . .
Steep downsides
The push for an Article V convention has been driven largely by the failure of conservatives to get a federal balanced budget amendment through Congress. Having despaired of getting the necessary two-thirds majority for a balanced budget in the time-honored way through Congress, proponents have now resorted to staging a convention by way of the states—where decades-long efforts to tilt state legislatures to the right have been so successful that achieving an Article V Convention is on the horizon.
Success could be ugly. Even if you really wanted a balanced budget mandate so much you would push to the extremity of an Article V Convention, you might be alarmed at how this page in the Common Cause website describes the prospect:
Plans to convene a new constitutional convention under Article V of the U.S. Constitution are a threat to every American’s constitutional rights and civil liberties.
Article V convention proponents and wealthy special interest groups are dangerously close to forcing the calling of a constitutional convention to enact a federal balanced budget amendment (BBA). This would be the first constitutional convention since the original convention in 1787 — all constitutional amendments since then have been passed first by Congress and then approved by three-fourths of the state legislatures. There are no rules and guidelines in the U.S. Constitution on how a convention would work, which creates an opportunity for a runaway convention that could rewrite any constitutional right or protection currently available to American citizens.
There are two bright red flags raised here by Common Cause: (1) the involvement of “wealthy special interest groups;” and still worse (2) “an opportunity for a runaway convention . . . .”
Yow! It’s no wonder that such a respected voice on constitutional matters as the late Supreme Court Justice Antonin Scalia declared: “I certainly would not want a Constitutional Convention. Whoa! Who knows what would come out of it?” Another pillar of conservatism, former Chief Justice of the Supreme Court Warren Burger, said:
“[T]here is no way to effectively 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 one issue, but there is no way to assure that the Convention would obey.”
And so forth. For additional warnings about an Article V convention, read this from the Colorado Fiscal Institute.
Who are the “radicals” in today’s political environment?
The 230-year-long refusal of Congress to pass a federal balanced budget amendment reflects a commonsense approach to fiscal policy that I will address in a separate post—suffice it to say, that as ideologically split as the Congress has become, most members are still inclined to apply common sense and nix the balanced budget idea. Right now, if there were ever a case against a federal balanced budget amendment, it has been screaming at us throughout the Covid-19 pandemic. For a more thoroughly reasoned argument, check out this from the Center for Budget and Policy Priorities.
We have to conclude, especially in light of the opinions of Supreme Court Justices Scalia and Burger, that the push for an Article V Convention is outside the bounds of responsible conservative thought. To promote such a potentially volatile process just to get a balanced budget amendment reeks of radicalism, next to which a Medicare-for-All campaign sounds as tame as a Girl Scout Cookie drive.
If you would like to help head off the campaign to call an Article V Convention, go back to the link to Common Cause and consider donating to their effort to head off a constitutional catastrophe.
Excellent presentation of little-known hazard.