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  • Unknown Risks and Potential Dangers of A Constitutional Convention

    On a variety of fronts—Medicaid mandates, individual health insurance mandates, national education standards—state governments are vigorously pushing back against an overweening federal establishment. This resistance to federal power includes a number of folks who are promoting a constitutional remedy that has never yet been employed in our nation’s history—a convention for considering constitutional amendments. As provided for in Article V of the U.S. Constitution, states have the power to call on Congress for a constitutional convention when two-thirds of them agree to do so. We asked Matthew Spalding, Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation, for his thoughts on this idea.

    1. In spite of numerous political convulsions in our history, we’ve never had an Article V convention. Why do you think that is so?

    An Article V amendments convention has been a debated proposition since the very beginning. Madison understood this when he argued at the Constitutional Convention that “difficulties might arise as to the form, the quorum etc. which in constitutional regulations ought to be as much as possible avoided.” He recorded some of these questions in his convention notes: “How was a Convention to be formed? By what rule decide? What the force of its acts?” Combine these with the fact that no such amending convention has ever occurred (that is, there is no precedent) and too many serious questions are left open and unanswered. This absence of guidelines or rules makes an Article V convention a risky venture, and one that legislators have historically avoided.

    Legislators have threatened an Article V convention as a way of encouraging Congress to take action on a certain issue. In these instances, the threat of an Article V convention (with all of its unknowns) is considered dangerous enough that Congress proposes the desired amendment through the usual congressional method. This is not an unreasonable aspect of a constitutional strategy, but very different from claiming that we should actually have such a convention as a matter of course.

    2. Some scholars think an Article V convention could be limited to considering specific amendments. Do you think that is the case, or not?

    The largest question is whether an amendments convention can be limited to specific amendments or even topics. The pro-convention argument assumes that the power to limit the convention is inherent in the power to call the convention in the first place. I’m not so sure that follows: The text says that upon application of the states Congress “shall call a Convention for proposing Amendments,” not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention). Indeed, it is not at all clear as a matter of constitutional construction (and doubtful in principle) that the power of two-thirds of the states to issue applications for a convention restricts, supersedes, or overrides the power of all the states assembled in that convention to propose amendments to the Constitution. When Madison later pointed to an Article V convention as a way to solve the Nullification Crisis (as did Lincoln during the Civil War), an amendments convention was understood to be free to propose whatever amendments thought necessary to address the problems at issue.

    3. Shouldn’t we pursue an Article V convention as an option for constitutional reform? What gives you hope that we can reform the federal government without an Article V convention?

    Serious scholars will undoubtedly continue to debate the historical record and speculate about the possibility of an amendments convention under Article V. But the argument that, as a matter of course, we should spend considerable time, money and effort right now to design, plan, and implement a convention—despite the unknowns and risks involved—is both imprudent and potentially dangerous. It is a distraction that inevitably gets bogged down in a debate over technical details, taking valuable attention and focus away from the substance of the constitutional reforms themselves. Claims of the ease and efficacy of an Article V convention are also misleading to the many committed and well-meaning reformers and activists who are serious about constitutional change in the United States.

    There are several very good constitutional amendment ideas circulating, and a strong consensus is beginning to coalesce around a few. We should be careful not to undermine those good efforts by tying them intrinsically to the dubious process of an Article V convention.

    There may be a time in extremis when an Article V convention is our last option to try to preserve the Constitution. But just when there seems to be a national awakening to reestablish constitutional principles, American politics at the state and national level is moving in the right direction and a decisive election is on the horizon—that dark time is not now.

    Posted in First Principles [slideshow_deploy]

    27 Responses to Unknown Risks and Potential Dangers of A Constitutional Convention

    1. West Texan says:

      Would a similar convention have been productive under the corrupt aristocracy of King George? I doubt it. That’s what revolutions are for. Our original federalism needs to be put back into order.

    2. R Holland, Chandler, says:

      Congress should call a constitutional convention and the states would control it.

      New amendments.

      1. Balanced budget.

      2. Line item veto.

      3. Increase Representative terms to 4 years.

      4. Term limits for Congress. (12 years)

      5. No life time appointments for judges.

      6. Eliminate or modify electoral college.

      • G Thompson says:

        Elimating the electoral college would result in a few populous states determing the presidency.

        • Guest says:

          The Electoral College, as it exists now, allows a few populous states (11, to be exact) to determine the presidency. A better solution would be to abolish the Electoral College and also add a requirement that a candidate must win the popular vote in a majority of states to win

    3. Mike, Wichita Falls says:

      The idea of amending our Constitution, either through the traditional way or through a convention, may be appealing, but what good would those amendments be if a majority of existing politicians do not follow the Constitution as it is exists right now? We could spend most of our time and treasure amending it only to lean on the mostly statist-filled judicial branch to enforce it on the mostly statist-filled legislative and executive branches, or we could spend our time electing freedom-loving people who will honor it. The current Constitution is explicit enough; we just need people with the courage to live by it. Look at who is taking the arrows right now…Palin, Bachmann, DeMint, Walker, Jindal. These are the kind of people we need in office.

    4. Martin Jones says:

      A Constitutional Convention would be very dangerous. Especially if the wrong people dominated it. Read Liberal. Leave it alone. There is another path, that the states have to approve.

    5. Gene Ruminski, White says:

      Invoking Article V of the Constitution is akin to upsetting an apple cart. No one can predict where the apples will go. And so it is with Russian roulette. Doing a Constitutional Convention is very much like that proverbial apple cart or playing Russian roulette. In short don’t even think of invoking Article V.

      A far more effective gambit aimed toward restoring the political balance intended by the framers of the Constitution is the repeal of the 17th amendment. The constitution, as originally written, was a federation of sovereign states with senators appointed by states legislatures to represent the interests of the several states and intended to preclude an all-powerful Federal government.

      The repeal of the 16th Amendment permitting the Federal Government to tax the individual citizens of the several states would also help restore the barrier between the Federal Government and individual citizens as intended by the framers of the constitution.

      The repeal of both amendments would have precluded the drive towards Socialism we have witnessed during the past 90+ years beginning with the Tariff Act of 1913 which under the guise of correcting tariff imbalances restored the Federal income tax previously ruled unconstitutional.

      Many of the acts of the congresses during this time frame have imposed materially unsustainable edicts upon individual citizens in direct violation of numerous clauses of the Constitution. Provisions originally intended to protect citizens from a tyrannical and all-powerful federal government.

    6. herebet2 says:

      Why not amend the Constitution to accomodate people like Supreme Court Justice Breyer who wants to limit the First Amendment to protect topics that do not offend people in other nations (Stephanopoulos, G. (9/14/2010) "Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?'" Retreived 3/9/11 from http://blogs.abcnews.com/george/2010/09/justice-s
      Or to accomodate people like President Obama who uses the podium and authority of The President of The United States to condemn First Amendment conduct that might offend the 'Holy Koran'?

    7. Gordie Hayduk, Flori says:

      Alex Adrianson, your article is so full of trepidation when you use phrases like "Unknown Risks" and "Potential Dangers" that I wonder if you should continue as an American Citizen. My ancestors from the Mayflower, Thomas Rogers and William Brewster, as well as others would have asked you to stay ashore in the old country for lack of courage by the way you speak. What if these stalwart men and women cackled phrases like those above and throughout your article — what if we run out of food, what if we get lost, what if our ship sinks, and others? Where would your family and you be today with such brazen trepidation? Truly, we have nothing to fear except fear itself.

      I trust my fellow Americans to be totally focused on the proceedings of an Article V Amendments Convention; I trust the state legislatures to vet the delegates as to their patriotism, passion and pragmatism. I don't trust the run-away Congress. I don't trust the oligarchy-styled government that has sold our future to Corporate America and the ultra-wealthy, and made American Citizens financial slaves to their greedy behaviors.

      I invite you, Alex, to travel the highways and byways of America, get to know your fellow citizens on a face-to-face basis, then hopefully you'll learn to trust in your neighbors as opposed to the political zoo in Washington DC. If you want something to fear, fear them and the folly they pursue.

    8. Gordie Hayduk, Flori says:

      ARTICLE V CONVENTION FACTS

      • The Article V Convention is not a "constitutional convention" or Con-Con, and does not and cannot re-write the U.S. Constitution.

      • Whatever is discussed at the Article V Convention, 38 states must then agree to adopt any proposals before an amendment is ratified.

      • The Article V Convention is simply a deliberative assembly of state delegates discussing what might garner the approval from an overwhelming amount of citizens from across the political spectrum.

      • The Article V Convention is, by law, currently mandated by Article V and the U.S. Constitution.

      • The Article V Convention returns us to the U.S. Constitution and the rule of law, reviving both in the face of current institutionalized corruption.

    9. John De Herrera, San says:

      What's killing us today? Institutionalized corruption, or Politics As Usual. The convention clause of Article V is what stops Politics As Usual dead in its tracks because it's a constitutional process which requires special elections for delegates, then the actual deliberative assembly of delegates, and then the national discussion over what's left on the table by the convention. It's this process which stops Politics As Usual, while at the same time re-educating the entire nation in one fell swoop about what the Constitution means, and why it was written the way it was.

      What we need more than anything today is a national discussion, which is exactly what the Article V Convention is. Whether or not it's even possible to get 38 states to agree to any one single idea doesn't matter as much as the need to stop the institutionalized corruption from doing what it's doing, and talk about what might be done about it.

      Anti-Conventionists have it all wrong, and are in effect arguing against We The People and the Constitution. Shame on them.

    10. Leon Lundquist, Dura says:

      I agree be careful about an Article Five Constitutional Convention. Consider the fact that the Demo-crats happily voted for a Third Generation Communist and are slap happy about pushing America over the cliff! If Americans are acting like European Socialists, then it is a bad time to rewrite the Constitution! Perhaps we should wait until the American Educational System is restored! Don't ask the question if you know the answer will be bogus! Freedom is Slavery after all, or that is what the Democrats prove in all their Acts! So what? You wouldn't let the Communists write our Constitution? It would be worded like the Progressives in the White House proved they believe! The Government can do anything they want with Americans! That is what they believe!

    11. Old Minstrel Man says:

      My suggestion to R. Holland of Chandler, AZ. and to anybody else who ventures to post and desires to present knowledge and intelligence on this topic should first Google or Yahoo "BEWARE ARTICLE V" This Youtube video presents a wealth of information in a very short half hour.

      Believe it or reject it. Like it or not. The Conservative Movements within this Constitutional Republic owe a debt of gratitude to Robert Welch and the eleven original members who met for a two day retreat back in 1958 in Indianapolis to found the JBS.

      The extensive research and library and the reprinting and republishing of countless historical books and documents, (both pro and con) of the thinking(and the hard-working pro-active members) of the JBS has preserved and dispensed much knowledge to countless latter-day defenders of freedom and sparked the minds of conservatives,and other groups and instifutes of freedom. Many of whom are oblivious and will never know how much direct and/or indirect influence the JBS has had on these revered thinkers and professors of conservatism.

      Without naming names, suffice it to say that the average American would be, not only amazed, but astounded at some of the biggest names in Conservative Talkers, Writers, Former and Present-day Politicians and even at least one President within this group. Many of whom continue this day to strive for political correctness by (still) maligning without justification the JBS and its members.

      Again, without naming names, there are a select few of this group (and one talker in particular) who have admitted to being former detractors and have repented and retracted their views and former malignings. Needless to say, (the one in particular) his ratings continue to soar.

      At this point, in the interest of free speech and exposing the atrociousness of the unfair "Fairnes Doctrine" and the dreaded Statist "Internet Switch", I am challenging all Constitional and Republic and freedom loving Americans and Democrat and Republican members of Congress and JBS members too, to stand up in defense of a member of the former group (unrepented detractors) who is now being maligned unfairly by a foreign government and undefended by his own..

      In fairness, to this treatise of not calling out members (detractors) of the former group and if you do not know of whom I am referring. Then please research the petition on line and the support,(of this sometimes obnoxious, sometimes arrogant, sometimes left , sometimes right, sometimes wrong, always popular talker) being given by the Honorable Congressman and (war hero) Alan B.West on his behalf.

      Thank You

    12. Bobbie says:

      Unknown Risks and Potential Dangers – reads like the definition of the new moderate democrat. Please protect the peoples American Constitution.

    13. Paul O'Reilly, says:

      We need a national awakening to reestablish constitutional principles now. Congress is unable or unwilling to control itself, to act within constitutional limitations, or to propose amendments in time to address “the dark time” that is already upon us. The current Republican majorities in the states should consult with one another to reduce risks and then push forward aggressively to propose even just one well-thought amendment designed to restore the states place in the federal union and to send out a signal. Many constitution-loving Americans, legislators, and party officials agree that there is a need to amend in order to save the original Constitution but they are afraid of the risks associated with a convention for proposing amendments under Article V. But there are also risks associated when we take counsel with our fears and do nothing. I think the risk of continuing to do nothing is greater than the risk of a “runaway” convention, which is minimal in any event given that nothing can change without subsequent ratification by three fourths of the states. The extreme left has been successful in undermining the Constitution for many years, plus they are boldly on the march now with their “The Constitution in 2020” project and the like. When faced with far greater risks, our Founders wrote this: “And for the support of this declaration, with a firm reliance on the protection of Devine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.” The Unanimous Declaration of the Thirteen United States of America, July 4, 1776. We should be bold now to save what they went on to give us as our Heritage, which includes both amendment processes set forth in Article V of the Constitution.

    14. James Bennett says:

      I fail to see what you fear about an article V convention when our politicians openly sneer at any question of the constitutionality of their actions. The constitution is in effect dead.

    15. John De Herrera, San says:

      If you disagree with Democrats and/or liberals and/or progressives; or if you disagree with the other end of the political spectrum–do you really believe there is nothing that both the right and left can agree on?

      The Article V Convention is simply a three-part national discussion: electing delegates (what ideas will they run on?), the actual deliberative assembly (what will 2/3 of the delegates vote up or down), and finally ratification process (what proposals if any will garner the approval of 3/4 of the states?).

      Anti-Conventionists are advocating against We The People and the Constitution in advocating against the convention clause of Article V.

    16. Bill Walker, WA says:

      I find the comments about the "dangers" of a convention interesting. For example, precisely what "dangers" are we discussing. If, as usual, those who make such remarks mean a convention would rise up and overthrow our form of government then it follows they have knowledge of such a criminal act and if they do not report who plans to do this, they themselves have violated federal law by not reporting it to the authorities. Yet, if asked, they say they have no knowledge.

      The fact is, all of these so-called "dangers" are just that. So-called. Those who state them never mention actual facts because there are none. They use any excuse they can to cloud the issue and hide behind the fact they want this nation to fail. What other conclusion is possible? Given the irrefutable fact a convention is mandated by the Constitution as the states have satisfied the single requirement of Article V, this means those who oppose a convention actually are urging the Constitution be overthrown–vetoed by the government by allowing that body NOT to obey its provisions.

      The facts are irrefutable: 49 states have submitted over 700 applications for a convention call. Congress has refused to call the convention. The applications can be read at http://www.foavc.org. All who really want the facts about a convention should go to the FOAVC website, read the applications and the FAQ section of the site and learn the facts. These facts are based on public record, court rulings and other verifiable sources. They are, as are the comments above including those of the author, baseless allegations with no references or facts to back them up.

      People need to decide once and for all, will they obey the Constitution as is, or will they not obey it and thus destroy it. Article V is part of the present Constitution and one only proves they are a hypocrite if they say they want the Constitution obeyed, but only those parts they agree with.

    17. Joel S. Hirschhorn, says:

      Those who fear using what the Founders gave us in Article V and still proclaim to love and respect the Constitution are nothing but constitutional hypocrites. None of us, most of all members of Congress, have a right to pick and choose what parts of the Constitution to honor and obey. There have been far more than enough state applications to Congress for an Article V convention and the reason why we have not had one is that those with political power and influence fear true reforms of the political and government system that would rid it of all the corruption that maintain the status quo. The convention is the constitutional path to reforms that Congress will never propose as amendments. The system is so broken that elections clearly are unable to repair the republic. I trust the wisdom of the Founders more than the fears of those who oppose the convention.

    18. d.a.n says:

      Unfortunately, there are many who like the status quo, and will do just about anything to protect it, no matter how unconstitutional, illegal, and corrupt it may be.

      I'm a bit surprised to see the Heritage Foundation promoting the continued violation of Article V, and more myths to obscure and cloud the facts about Article V.

      It's not that complicated.

      Article V is only 143 words in one sentence, and it's meaning is quite clear.

      Many that interpret ambiguity into it have ulterior motives, and violate the Courts' rules of interpretation, but resorting to "construction" to invent new interpretations.

      In United States v. Sprague, 282 U.S. 716 (1931), the Supreme Court stated: “The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them.”

      So, what part of that does Congress not understand?

      The fact is, all of the arguments against Article V are lame, and those trying to invent new interpretations of Article V simply turn themselves into pretzels while trying to use obfuscation, distortions, construction, and other gobbledygook to distract from the simple facts.

      The purpose of Article V was to curb the rampant abuses we see today.

      If Article V, and other parts of the constitution are allowed to be violated, then it's a slipperly slope to totalitarianism.

      At any rate, the voters have the government that they elect, and re-elect, and re-elect, . . . , at least, until repeatedly rewarding for-sale, irresponsible, incompetent, and corrupt incumbent politicians with perpetual re-election finally becomes too painful.

    19. W. L. Doolin, Missou says:

      I am not one to usually leave a comment but I felt that inclined to speak my mind on this issue. I am not a constitutional scholar or particularly saavy when it comes to current events, but I would like to state my semi-informed opinions on this matter.

      Firstly, as to the issue of whether congress should approve the Article V convention. This question seems to me to be a no brainer, whatever the risks involved in enacting an Article V convention (to either the Liberal or Conservative) it is in fact the Congress's DUTY, mandated by the constitution, to approve the assemblance of a convention. While the wording of the constitution may give the Congress a "choice", what it really does is place the responsibility on the Congress to ensure that the will of the people and states–which they represent–is carried out.

      Secondly, as to the issue of whether an Article V convention is necessary in the current environment. I have always understood the Article V convention to be the Constitution's nuclear bomb. It is the final solution, and should only be called on when all other avenues have failed. I love the constitution and think it to be one of the greatest documents of all time, and one of my favorite things about it is that it leaves multiple options for reform. I feel we have not yet exhausted all options on the matter.

      To follow my second point, the dangers are real. I get nervous anytime someone even mentions the word "Amendment" because an amendment is most likely (in my semi-informed opinion) going to cause multiple problems in the process of attempting to fix a singular issue. We see this in the normal law making process. American's across the country believed that health care could–and should be–improved, but the only way of doing this was to place it in the hands of politicians who created a monstrosity that is being fought in everyway possible. I see this being the end result of an Article V convention.

      However, It should also be noted that the Article V convention–though never tried or tested–is (as stated by John De Herrera above) a multi-step process with safe guards in place to prevent a run-away convention. It is a national discussion, and that is always a good thing.

      In conclusion, I favor a national discussion which could be found through the article V convention, but I am worried about the possible outcomes of amending our constitution.

    20. Tom Donohue Dallas T says:

      You are right you should only invoke the Article V convention to propose amendments at times when only you need it. Let's just look at 3. Term limits 73% of Americans want it. Hmmm the congress thought it was good for the president but guess what not for them. It was a touching moment when Senator Byrd was wheeled in to vote wasn't ii? Really do you think term limits will be voted in by congress? Champaign reform 63% in favor citizens united another piece of work. I don't care what side of the aisle you are on the average American voice is drowned out by special interest groups (unions or Corps), They are interested in concentrated power. You know what the greatest President in our time said Reagan "Concentrated power is the enemy of Liberty". Balanced Budget 65% they can not do it and this is critical that it is done. I love what is going on the president 4% cut, R's 8% don't touch homeland/CIA/FBI or defense D's 5%.

      Now why is it that you did not mention that it takes 38 states to ratify. Do you have any idea how hard that is?

      • Ralph E. Kelley says:

        How hard was the first Constitutional Convention? However I would point out that prior to the constitution, the United States government was based on the Articles of Confederation, which the Constitution superseded once it was ratified.

        The existing elected officals would continue to run the federal government until the Amendment presented in the Constitutional Convention were ratified. This is not hard, but it is effective.

    21. Erik Larson says:

      The required number of applications has been received by Congress; Congress has been continually derelict by failing to carry out its Constitutional requirement to call an Article V Convention for proposing amendments to the Constitution.

      While it makes no difference whether or not there are inherent dangers as this is the law, the claims being made of dangers are false. Congress, from time to time, has proposed amendments; these do not become part of the Constitution until ratified by 3/4 of the states; the same goes for Amendments proposed by an Article V Convention.

      The main difference is that, theoretically, a Convention is more open to having input from the states and the people, something the power elite and their minions in Congress would prefer to avoid.

      text of Article V:

      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.
      http://www.article-5.org/file.php/1/Articles/Text

    22. Ayres Boyd, Newport says:

      It's interesting to note that the majority of people who caution or belittle the Article V convention option have a stake in the status quo and are mainly in/dependent on Washington. The conversation needs to be at the state level and not in the nations capital. Ab.

    23. Ben Prather says:

      What is to stop some future congress from evincing designs to:

      1) Forge counting rules that accept the existing applications as valid, and reject any future rescissions
      2) Create laws for the selection of delegates to stack such a convention to propose amendments they desire
      3) Create laws to stack state conventions to ratify said amendments?

      We should call an Article V convention for no other reason than to clear all outstanding applications to avoid losing all rights to an increasingly federalized system.

    24. Jim_AZ says:

      Funny how some attribute moral deficiencies to those who wish to preserve original intent, no?

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