A Constitutional Convention: Be Careful for What You Wish

Right From the Start

Right From the Start

There is unrest in the multitudes.  Nationwide polling continues to express the contempt in which President Barack Obama and the United States Congress are held.  The Real Clear Politics numbers (an average of the leading polling institutions) for February 24, 2014, indicates that Mr. Obama’s disapproval rating stands at 52.4 percent.  Congress’ disapproval rating is even worse at 81.4 percent.  And a whopping 63.4 percent think the country is headed in the wrong direction.  So much for “hope and change.”

In response to this unrest, a number of conservative commentators have been raising the issue of a “constitutional convention.”  Article V of the United States Constitution states:

“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.”

So disillusioned are many about the inability of the federal government to do anything other than burnish their opportunities for re-election and enhance the authority and benefits of public employees that they have seized on the possibility of a constitutional convention.  The theory advanced by conservatives such as Mark Levin (a real constitutional scholar as opposed to Mr. Obama’s role as a substitute teacher) is that only a process free of the corruption and pandering of Washington, D.C can restore the values that once made America great.

But this is not the first time that those disillusioned by the unresponsiveness of the federal government have suggested a constitutional convention.  History is replete with instances where conservatives and liberals have suggested that a constitutional convention is necessary.  One of President Franklin D. Roosevelt’s advisors, Rexford Tugwell, pushed for a constitutional convention to elicit government control over the economy.  Even today there are voices on the left that have supported the call for a constitutional convention – a Harvard Law School symposium led by left wing professor Lawrence Lessig proposed just such a convention in 2011.

Based on my experience with a state constitutional convention, I believe that any such call for a constitutional convention under Article V is a license for disaster.  I recognize Mr. Levin’s arguments that Article V does not grant unlimited authority to a constitutional convention once convened but rather limits its authority to recommending amendments to the constitution which then requires ratification by three fourths of the state legislatures – not an easy task as demonstrated by the failed attempt to impose the so-called Equal Rights Amendment during the 70’s.  But the ability to propose amendments is the ability to nullify, distort, and re-direct the relationship between the people and their government.

But the most important reason that I oppose a constitutional convention is the nature of political discourse today.  This is not the late 1700’s when patriots fresh from securing their freedom from England focused like a laser on ensuring that the freedoms so dearly won would never be trampled by government again.  This is not even the late 1940’s and 1950’s when the Greatest Generation fresh from crushing those responsible for the death camps in Europe and the death marches in Asia returned with a fresh understanding of the cost of freedom and a dedication to securing the promises that the great American experiment foretold.

No, today we find ourselves increasingly comfortable with the intrusion of government – all in the mistaken belief that the world has become so large and complex that only the government can deal with the vicissitudes of life.  We have elected a president who possessed not a single qualification (other than age and citizenship) through education or experience to hold the most powerful office in the world and despite his routine demonstration of incompetence we re-elected him.  We routinely send ninety percent of sitting congressional representative back to succeeding terms in office despite polls that consistently put their approval rating at below twenty percent.

And today we find politics dominated by lobbyists, special interest groups and politicians singularly focused on re-election rather than the nation.  The once liberal dominated dissemination of news and opinion has now been tempered by the emergence of talk radio and FOX News but precious little is ever presented without a spin.  All sides choose what to report and what to withhold.  Add to that the dominance of the propagandists who pose as media advisors and work full time to distort critical issues by catchy messages and scripts.  And finish it all with the politics of personal destruction where the messenger is attacked in effort to nullify the message.

And that is precisely the pot into which we would be asked to create a constitutional convention.  The candidates for the office of delegate would run the same gamut as those running for congressional offices and the results would be the same.

In 1972 Montana held a constitutional convention.  It was sold to the voters as an opportunity modernize its government – to transcend the antiquated world of frontiersmen who established the original state constitution in 1884.  At that time I was a deputy attorney general in Montana and was designated as the liaison to the delegates.  Sitting members of the state legislature were barred from being candidates so as to enhance the likelihood that it would be a “people’s constitution.”  But what Montana got, with few exceptions, was a delegation that looked remarkably like the then current legislature.  Farmers and ranchers from Eastern Montana, joined trade union representatives from Butte, Anaconda and Great Falls and teacher union members from the urban areas.  The environmentalists had representative from the university cities of Bozeman and Missoula and there was a smattering of small business representatives from around the state.  The names had changed but the affiliations were mostly the same.

The discourse at times was high minded but at other times it submerged into fanciful tales of “students existing on roots and berries” and tearful ramblings that, to this day, I defy anyone to understand what was being said.  There were clearly delegates who sought to use their position to advance a political career.  There were others who cared nothing for the whole document and were prepared to trade votes on any issue for assurance that their issue would be included in the final document.

So complex were the myriad of issues confronting the delegation by the lobbyists, special interest groups and political parties that the delegates felt compelled to retain the services of a professor of law to ensure that the various articles to be included would be internally consistent and externally erudite.  Unfortunately, the professor they retained was – as usual – better at teaching than doing.  The end result is that Montana’s 1972 Constitution did little to modernize government and did much to ensure decades of litigation due to its conflicts and vagaries.  The only winner in the process was the government.  Its reach was extended, its growth with assured and its intrusion was guaranteed.  It was a waste of money, time and effort.  So worthless was the experience that since that date, not a single other state (with the exception of Texas) has undertaken a similar “constitutional convention” process.  And while Texas denoted their 1974 process as a constitutional convention it was, in fact, a special session of the then legislature to consider limit changes to its constitution.

Those conservatives advocating a constitutional convention believe that they can achieve further limitations on the role of government.  They believe that these will include a balanced budget amendment, a limitation on the ability of the federal government to impose programs and standards on the states, a greater clarification of freedom of religion, further strengthening of the right to bear arms and an elimination of quota requirements.  But in a day and age in which those same conservatives are unable to secure a majority votes to make such changes in Congress – and facing the same forces of lobbyists, media, and special interest groups – how do they expect they will prevail in a constitutional convention.  It is entirely possible that those same individual rights can be further eroded in the name of the “greater good.”

The process of change through a constitutional convention has many safeguards – principally those requiring a three-fourths concurrence of the state legislatures – but even those safeguards are insufficient to warrant the risk attendant to a runaway process, particularly with a society grown increasingly apathetic and dependent.

In simple terms – “Stick with what you know.”