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Unintended consequences

mckee

Every so often some group or another decides that the only way to bring about the result they are promoting is to convene an independent convention of the states to amend the Constitution.

Although it may sound perfectly reasonable, and although the subject matter being promoted may seem to be stalled from achieving the desired Constitutional action any other way, the process of getting there through a convention of the states is a terrible idea with potentially terrible consequences for a variety of complicated and technical, but very sound legal and historical reasons.

This fever is afoot again in Idaho, this year in the form of a Senate Concurrent Resolution now pending in the Idaho State Senate. SCR 108 is application to Congress to add Idaho’s name to a list of states that are requesting a constitutional convention. When this list reaches three-fourths of the states, or 35 in number, Article V of the United States Constitution mandates that Congress convene a convention.

The resolution was just reported out of the Senate State Affairs committee on a closely divided 5-4 vote. It will be on the floor of the Senate next for more debate and a full vote. Some 28 states have already adopted similar resolutions, with Wyoming and Arizona expected to do so shortly. This would make Idaho the 31st state to jump aboard, and is giving the current effort somewhat the look of a bandwagon – or a steamroller.

For the purpose of the analysis presented here, it does not matter that the subject of the proposed amendment, being a balanced budget amendment forbidding deficit spending on the national level, would absolutely lead to economic disasters of titanic proportions resulting in both domestic and world-wide catastrophes of enormous and immediate significance. More will come on this subject later. The point here is that the very idea of a separate constitutional convention all by itself, no matter what the subject or purpose, is wrong-headed, risky, and totally unnecessary.

If there truly was a compelling need for a constitutional amendment, there is no need to call for a separate convention of the states to start the process. We have a perfectly adequate assembly of delegates from every state that is in essentially continuous session year round in Washington D.C., being, of course, the United States Congress, which already has full authority under Article V of the Constitution to start the process of amendment at any time. Thirty-three amendments have been proposed by Congress and sent to the states for their consideration, and twenty-seven have been ratified and incorporated into the Constitution. The point here is that there is a perfectly acceptable procedure for starting a constitutional amendment in the Congress; we know how to do it, we know how to keep it under control, and we know that the procedure works.

There is already pending before Congress a proposal to amend the Constitution in exactly the manner asked for in the Idaho resolution. Similar balanced budget proposals have been submitted in almost every session of Congress since at least the 1930’s; none have ever passed. Only a few have ever seen the floor for a vote as most disappear into the bowels of the germane committees, never to be heard from again. But the fact that Congress has been unable or unwilling to pass a proposed amendment on this subject is not an argument for going around Congress. If anything, it is an argument that the subject is deeper that it appears on the surface, and requires more careful analysis before we go leaping off a cliff. There is no acceptable argument for going around the established procedure and attempting a process that is completely untested and presents so many risks.

What is missing from any general discussion of amending the Constitution by convention is any explanation of exactly how the process might come about. The Constitution provides no guidance. There is no provision in the Constitution or elsewhere on how many delegates are to be included, how they are to be allocated among the states, how they are to be selected from within the states, or how they or their states are to vote. Additional questions on such issues as whether methods can differ from state to state, whether the process should be partisan or non-partisan, the cost of it all, and the source of funding, are all unanswered. Given the realities of today’s Congress, these questions alone are enough to predict that the only result of congressional action will be a Gordian knot. Many, if not most knowledgeable observers predict outright chaos if Congress even attempts to convene a convention.

The proponents argue that under their proposal, the convention call will be for the limited purpose of taking up the subject amendment only, thinking that this removes the chance of chaotic expansion. They are wrong. There is no provision in Article V of the Constitution for limiting the process of amendment by convention, nor does the Constitution elsewhere grant Congress the power to impose such limits. Without some limitation defining the enumerated power being expressed within the Constitution, most scholars agree that Congress would have no power to engraft such a limitation on its own.

Recall that the Constitutional Convention of 1787 was originally begun in Annapolis for the limited purpose of amending the existing Articles of Confederation to insert some measures to improve foreign trade. Then, once the convention was convened, it promptly moved itself to Philadelphia, adopted new rules, and disappeared into closed session. It emerged September of 1787 with a brand new Constitution that completely overhauled the federal government.

It is the consensus of respected historians, legal experts and Constitutional scholars who have examined this issue that any convention convened under Article V could not be limited as to scope or subject matter. Once assembled, and once organized, the new convention could write its own rules, declare its own scope of inquiry, and go wherever it pleased – just as the Constitutional Convention did in 1787.

While it may be unlikely that any convention of states would lead us completely off the rails, it is entirely likely that all sorts of additional issues of the day would come up as different interest groups suddenly insisted upon their urgently needed matter being attended to by the convention. Term limits, gun rights, abortion, the establishment clause, judicial independence, prisoners’ rights, gay marriage and LGBT issues come immediately to mind, as well as the panoply of prisoner’s rights, privacy surrounding the cybernet, and personal freedoms in the shadow of terrorism. There are undoubtedly others. The ACLU’s hair is on fire.

Whether the delegates might voluntarily follow any limitations imposed by Congress and confine themselves exclusively to the subject matter of the call, or ignore the limits and wander off on their own, is a question that simply cannot be answered in advance. The mere possibility of an untethered convention, no matter how carefully constructed and no matter how well intentioned, rummaging through 230 years of Constitutional history and adding to or modifying selected items here and there at their whim, whose work would then be presented for approval by the states in total, with no opportunity for further editing or revision of any of the individual elements, horrifies most. In the past, the mere risk of this happening has been sufficient to bury the idea of a constitutional convention for good.

Given the ability of Congress to act itself in starting a Constitutional amendment if the issue was truly of vital national interest, coupled with the risks and uncertainties of getting an independent convention organized, the probabilities of endless political wrangling over partisan issues, and the huge expense of it all, and adding the uncertainties of what a rogue convention might come up with, it should be clear to all that the decision should be a “no” vote on SCR 108.

Better not bet the farm on it, though.

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