Constitutional Convention Is Not the Solution to Big Government

February 24, 2021 Updated: February 24, 2021

Commentary

Millions of Americans are understandably frustrated at the inexorable growth of governmental power, especially at the federal level. This frustration has caused many to look for solutions, many of which will either do nothing or have the potential to make the problem worse—much worse.

The proposal for a constitutional convention to supposedly rein in the out-of-control federal behemoth is the greatest example of the latter. In fact, calling a national convention to change our Constitution in our present toxic atmosphere could very well provide the final blow to our constitutional republic. As the late Justice Antonin Scalia once told the Federalist Society, in reference to the push for such a convention, this is a bad century in which to write a Constitution.

While this might seem to be alarmist, the threat is real. Harper’s magazine sponsored a forum at New York University in 2019 that illustrates the danger. The left-wing “scholars” at the forum argued that it’s our Constitution that’s the chief obstacle to the full implementation of the progressive agenda. One participant, Lawrence Lessig, argued that the best way to achieve progressive goals is a constitutional convention, provided for in Article V of the Constitution.

The Constitution has been amended 27 times (the first 10 times were all at once, producing our treasured Bill of Rights), but all of these amendments were proposed by the first method of proposal—by a two-thirds vote of each house of Congress. The second method of proposal, via a constitutional convention, has never been used.

But Lessig sees this so-far-unused second method as the best vehicle to remove the present constitutional obstacles to achieving the goal of the forum—ditching the present Constitution of the United States. He believes it’s time to “rewrite our Constitution.” Lessig has supported an organization dedicated to the calling of a national constitutional convention, known as Wolf-PAC. On page 293 of his 2011 book “Republic, Lost,” he wrote “a constitutional convention is the only final plausible strategy for forcing fundamental reform onto our Congress.”

Although there are many conservatives who are likewise desirous of a convention in order to pass this or that “conservative” reform, they should understand that once the convention is seated, conservatives might very well not have control of its agenda. Any such convention will be chosen by the same electorate that has picked our present Congress. The argument by the organization Convention of States that it would be the state legislatures that chose the delegates has no support in the text of Article V of the Constitution—none.

Many goals of the left would also be on the agenda at any such convention. For example, many have suggested the abolition of the Electoral College as one of the objectives that could be achieved at a national convention. Other progressives would no doubt target the repeal of the Second Amendment.

Some conservatives have been sold on the idea that adding new language to the Constitution to restrain the federal government is the solution to our present problems, but considering that congresses, presidents, federal judges, and federal bureaucrats routinely disregard our present constitutional restrictions on their powers, why should we believe they would respect any addition to the Constitution attempting to rein them in?

The First Amendment, adopted in 1791, specifically said that Congress could pass no law abridging freedom of speech or of the press. Yet, just seven years later Congress did exactly that with the Sedition Act. President John Adams signed the bill into law, and federal judges handed down fines and jail time to violators of the law.

James Madison, the man dubbed “the Father of the Constitution,” specifically rejected the idea of the calling of a constitutional convention to restrain a federal government that disregarded the restrictions placed upon it in the Constitution, when he wrote Federalist 49 of the “Federalist Papers.” In fact, Madison said that “occasional appeal to the people [a convention] would be neither a proper nor an effectual provision” for placing restraints on the federal government.

One of the frequently stated goals of the “Convention of States” crowd is the enactment of an amendment to require a federal balanced budget. While a balanced federal budget is a good idea in the abstract, this illustrates the fundamental problem of those “conservatives” who are calling for a national convention. First of all, Congress is presently exceeding its constitutional authority to spend money on a range of projects. If Congress simply obeyed our Constitution as it’s presently written, the federal budget would be balanced with ease. Secondly, unless Congress quits spending money on unconstitutional purposes, a balanced budget amendment would almost certainly lead to drastic tax increases.

Proponents of a constitutional convention assert that any such convention could be limited to certain topics. But this assertion can’t be supported by the text of Article V, which says nothing about limiting the convention to certain topics. It only says that the convention (not the state legislatures) can propose amendments. What Article V does say is that once two-thirds of the state legislatures make application for a constitutional convention, Congress (not the state legislatures) calls the convention.

In 2014, a report from the Congressional Research Service asserted that Article V gave Congress the exclusive authority to determine “the number and selection process for its delegates.” In short, those national convention advocates who expect each state to be equally represented at any such convention are exceptionally naïve. Does anyone really expect California’s mostly Democrat delegation to permit Republican, but low-population, states to send as many delegates to a convention as them?

This means, of course, if delegates are elected by popular vote within their state (it would be up to Congress to decide the selection process), then we could expect any such convention’s delegates to have the same ideological balance as our present Congress—after all, they would be chosen by the same electorate.

Once seated, the delegates themselves would determine what amendments to consider, not the Congress and not the state legislatures. While there would no doubt be some constitutionalists present at the convention, we could also expect to see delegates dedicated to the elimination of the Second Amendment and the Electoral College. In our present cancel culture, it’s probable there would be a push to restrict freedom of speech. Some would even desire to alter our very form of government, attacking the concepts of federalism and limited government.

Constitutional convention advocates argue, of course, that even if the convention passed horrific proposals, these still have to be ratified by three-fourths of the states. Again, the process of ratification would not be up to the state legislatures. Article V stipulates that it’s Congress that determines the ratification method, either state legislatures or state conventions. We would have much to fear in either case. We can expect large sums of money would be used in an effort to get the progressive amendments ratified.

Unexpected events could create an emotional environment for passage of, say, the repeal of the Second Amendment. Ask yourself: Would you want a proposal to repeal the Second Amendment to be up for consideration in the immediate aftermath of another mass shooting?

So much more could be said in opposition to this unwise idea of a constitutional convention. The best we could hope for out of such a convention is that they would meet, pass an amendment or two that we could live with, and go home—giving the federal government yet another part of the Constitution to disobey. But, like a game of Russian roulette, the hammer could fall on the wrong chamber and kill our constitutional republic.

Steve Byas is a professor of history and government, who has taught Constitutional Law, and is the author of “History’s Greatest Libels.” He has written several articles for both popular publications and academic journals.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Steve Byas
Steve Byas
Steve Byas is a professor of history and government, who has taught Constitutional Law, and is the author of “History’s Greatest Libels.”